PoliRev Assignment 2

PoliRev Assignment 2
Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-55151 March 17, 1981
DAVID AGUILA, EDITA BUENO, EVELITO ELENTO, RESURRECTION INTING, ANTONIO LIM and WILFREDO
CABARDO, petitioners,
vs.
HON. MELECIO A. GENATO and DOMINADOR B. BORJE, respondents.
MELENCIO-HERRERA, J.:
The principal issue raised in this certiorari petition with a prayer for a Writ of Preliminary Injunction is whether or not respondent
Judge committed grave abuse of discretion in issuing a Restraining Order, which had the effect of allowing private respondent,
Dominador B. Borje, to retain his position as member of the Board of Directors of the Misamis Occidental Electric Cooperative,
Inc ., (MOELCI II)
Succintly stated, the pertinent facts follow:
Petitioners David Aguila and Edita Bueno are the Deputy Administrator and Director for Cooperative Development, respectively,
of the National Electrification Administration (NEA).
Petitioner Evelito Elento is the Acting General Manager of MOELCI II, while petitioners Ressurrection Inting, Antonio Lim and
Wilfredo Cabardo, are members of its Board of Directors.
Private respondent Dominador B. Borje, representing the North District of Ozamiz City, was elected Director of MOELCI II, to
hold office as such for three years starting March 25, 1979.
Section 21 of Presidential Decree No. 269 (second paragraph) provides:
The provision of any law or regulation to the contrary notwithstanding, an officer or employee of the
government shag be eligible for membership in any cooperative if he meets the qualifications therefor and he
shall not be precluded from being elected to or holding any Position therein, or from receiving such
compensation or fee in relation thereto as may be authorized by the by-laws; Provided That elective officers of
the government, except barrio captains and councilors, shall be ineligible to become officers and/or directors of
any cooperative, ... (emphasis supplied)
Section 3, Article IV of the By-laws of MOELCI II also explicitly states:
Section 3. Qualifications. ... No person shall be eligible to become or to remain a Board member of the
Cooperative who
xxx xxx xxx
(c) holds an elective office in the government above the level of a Barangay Captain
xxx xxx xxx
(emphasis supplied)
On 4 January 1980, private respondent filed his certificate of candidacy for the position of member of the Sangguniang
Panglunsod of Ozamiz City in the 30 January 1980 local elections.
On 7 January 1980, the NEA, through Administrator Pedro G. Dumol, issued Memorandum No. 18 to the effect that all officials
and employees of electric cooperatives who run for public office, win and assume office, shall be considered The Memorandum
was issued pursuant to the authority granted under PD No. 1645, amending PD No. 269, reading.
10. ... the NEA is empowered to issue orders, rules and regulations ... in the exercise of its power of
supervision and control over electric cooperatives and other borrower, supervised or control entities (Sec. 5,
amending Sec. 10 of P.D. No. 269). 1
On January 1980, the NEA Deputy Administrator sent a telegram to the Acting General Manager of MOELCI II stating that
should private respondent Borje be elected to the Sangguniang Bayan, he shall be considered resigned from his position as
Director for the North District of Ozamiz City, Private respondent moved reconsideration and requested that he be allowed to
serve the unexpired term of his office in accordance with PD No. 269. Reconsideration was denied by NEA on 7 February 1980.
On 3 March 1980, private respondent filed a Petition for "Prohibition, mandamus & Construction of Legal Provisions with
Preliminary Injunction and Damages" against petitioners before the Court of First Instance of Misamis Occidental, Branch II
(Spec. Case No. 0511), seeking a declaration of entitlement to remain and to serve his unexpired term as Director of MOELCI II
until March, 1982.
On 3 March 1980, having won the election, private respondent assumed office and began discharging his functions.
On the same date, 3 March 1980, respondent Judge issued, ex- parte, a temporary restraining Order commanding petitioners
considering private respondent as resigned, and, instead, to snow him to retain his position as member of the Board of Directors
of MOELCI IIpending hearing. 2
Petitioners moved to dismiss and to dissolve the Restraining Order alleging lack of cause of action and invoking section 21 of
PD No. 269 (supra), section 3, Article IV of the by laws OF MOELCI II(supra), as well as section 24 of PD No. 269 providing that:
... The by-laws shall prescribe the number of directors their qualifications other than those prescribed in this
Decree, the manner of holding meetings of the board and of electing successors to directors who shall resign,
die or otherwise be incapable of acting. The bylaws may also provide for the removal of directors from office
and for the election of their successors ...
On 24 March 1980, respondent Judge lifted and dissolved the Restraining Order, 3 only to restore it the next day, 25 March
1980. 4
In their Motion seeking reconsideration of the Order of 25 March 1980, petitioners stressed that NEA possessed the power and
authority to promulgate Memorandum No 18, and that, similarly, the Board of Directors of MOELCI IIhad the power to implement
the same under PD No. 269, as amended by PD 1645.
Petitioners filed their Answer on 6 April 1980 reiterating the grounds in their Motion to Dismiss.
On 8 May 1980, vacation Judge Celso Largo reconsidered the Order of respondent Judge, dated 25 March 1980, and dissolved
the Restraining Order. 5
On 10 May 1980, the Board of Directors of MOELCI II held a special meeting and passed Resolution No. 121, S-80,
implementing NEA Circular No. 18 and declaring private respondent's position as member of the Board of Directors of MOELCI
II vacant.
On 6 June 1980, upon a Motion for Reconsideration, respondent Judge set aside the Order of the vacation Judge, dated 8 May
1980, in effect reviving the Restraining Order, on the ground that, as "councilor" of Ozamiz City, section 21 of PD No. 269 itself
exempts private respondent from the prohibition imposed on elective officials to become Directors of electric cooperatives. 6
Hence, this Petition filed on 29 September 1980 by petitioners, through the Solicitor General, advancing the view that Courts of
First Instance have no jurisdiction to issue a Restraining Order and that respondent Judge had committed grave abuse of
discretion in issuing the same.
On 10 October 1980 we required respondents to submit an Answer and issued a Restraining Order enjoining respondents from
enforcing the Order of the Court a quo dated 6 June 1980 and from conducting further proceedings in the case below. Private
respondent Borje has filed his Answer, petitioners have submitted their Reply, and on 2 February 1981, we resolved to give due
course to the Petition and to consider the case submitted for decision.
We find that respondent Judge gravely abused his discretion, amounting to lack of jurisdiction, in issuing the various Restraining
Orders, the last of which was dated 6 June 1980. Private respondent has shown no clear and explicit right to the position of
Director of MOELCI IIand is, therefore, not entitled to a Restraining Order, which partook of the nature of a mandatory Injunction,
commanding as it did that private respondent be retained in his position as such Director. By having been elected member of the
Sangguniang Panglunsod of Ozamiz City, private respondent rendered himself ineligible to continue serving as a Director of
MOELCI IIby virtue of the clear mandate of PD No. 269 providing that except for "barrio captains and councilors", elective
officials are ineligible to become officers and/or directors of any cooperative. It is clear to us that the term barrio modifies both
captains and councilors. Further, the MOELCI II, by-laws explicitly state that no person can remain a member of the Board if he
"holds an elective office above the level of barrio captain.
Private respondent's argument that PD 269 (sec. 21) does not prohibit Board members of a cooperatives from continuing in their
position prior to their election, and that pursuant to section 24 of PD No. 269 he is entitled, as Director, to hold office for the term
for which he is erected and until his successor is elected and qualified," is untenable. Eligibility to an office should be construed
as of a continuing nature and must exist at the commencement of the term and during occupancy of the office. The fact that
private respondent may have been qualified at the time he assumed the Directorship is not sufficient to entitle him to continue
holding office, if during the continuance of his incumbency he ceases to be qualified. Private respondent was qualified to
become a director of MOELCI II at the time of the commencement of his term, but his election as member of the Sangguniang
Panglunsod of Ozamiz City, and his subsequent assumption of office, disqualified him to continue as such.
Moreover, it should be recalled that when respondent Judge issued the Restraining Order of 6 June 1980. NEA Memorandum
Circular No. 18 had already been implemented by the MOELCI Board in the latter's Resolution No. 121, passed on 10 May
1980, declaring the position of private respondent, as Director, vacant. Strictly speaking, therefore, there was no longer any
position which private respondent could retain.
WHEREFORE, finding that respondent Judge acted with grave abuse of discretion tantamount to lack of jurisdiction in issuing
the Restraining Order, dated 6 June 1980, the said Order is hereby annulled and set aside, and the Petition in Special Civil Case
No. 05IIof the Court below hereby ordered dismissed. The temporary Restraining Order heretofore issued by this Court is
hereby made permanent. No pronouncement as to costs.
SO ORDERED.
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 85279 July 28, 1989
SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO,
JUANITO MADURA, REUBEN ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO
MAGPAYO, petitioner,
vs.
THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98,
QUEZON CITY, respondents.
Vicente T. Ocampo & Associates for petitioners.
CORTES, J:
Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System
Employees Association (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or
not employees of the Social Security System (SSS) have the right to strike.
The antecedents are as follows:
On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of
preliminary injunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal
strike and baricaded the entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS
members from transacting business with the SSS; that the strike was reported to the Public Sector Labor - Management
Council, which ordered the strikers to return to work; that the strikers refused to return to work; and that the SSS suffered
damages as a result of the strike. The complaint prayed that a writ of preliminary injunction be issued to enjoin the strike and
that the strikers be ordered to return to work; that the defendants (petitioners herein) be ordered to pay damages; and that the
strike be declared illegal.
It appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of
the provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued
overtime pay, night differential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or
more of service into regular and permanent employees and their entitlement to the same salaries, allowances and benefits given
to other regular employees of the SSS; and payment of the children's allowance of P30.00, and after the SSS deducted certain
amounts from the salaries of the employees and allegedly committed acts of discrimination and unfair labor practices [Rollo, pp.
21-241].
The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of
preliminary injunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of
jurisdiction over the subject matter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the
issuance of a writ of injunction [Rollo, pp. 209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to
dismiss and converted the restraining order into an injunction upon posting of a bond, after finding that the strike was illegal
[Rollo, pp. 83- 86]. As petitioners' motion for the reconsideration of the aforesaid order was also denied on August 14, 1988
[Rollo, p. 94], petitioners filed a petition for certiorari and prohibition with preliminary injunction before this Court. Their petition
was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Court, through the Third Division, resolved to refer
the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, but during its pendency the Court of
Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitioners moved to recall the
Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in G.R. No. 97577
for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of this
Court's denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the
Court of Appeals [Rollo, pp. 12-37].
Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from
staging another strike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January
25, 1989 and to maintain the status quo [Rollo, pp. 151-152].
The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the
issues joined and the case submitted for decision.
The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to
issue the restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and
Employment or the National Labor Relations Commission, since the case involves a labor dispute.
On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil
service laws and rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the
DOLE nor the NLRC has jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking.
In dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held
that since the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the
Regional Trial Court, which had jurisdiction over the SSS' complaint for damages, from continuing with their strike.
Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that
the Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the
strike are as follows:
1. Do the employees of the SSS have the right to strike?
2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing
with the strike and to order them to return to work?
These shall be discussed and resolved seriatim
The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of
all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to
strike in accordance with law" [Art. XIII, Sec. 31].
By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to
strike. But the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission,
it provides, after defining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the
Government, including government-owned or controlled corporations with original charters," that "[t]he right to self-organization
shall not be denied to government employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that
"[tlhe right of the people, including those employed in the public and private sectors, to form unions, associations, or societies for
purposes not contrary to law shall not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution
recognizes the right of government employees to organize, it is silent as to whether such recognition also includes the right to
strike.
Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A
reading of the proceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing
the right of government employees to organize, the commissioners intended to limit the right to the formation of unions or
associations only, without including the right to strike.
Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be
denied to government employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio
B. Padilla, Vice-President of the Commission, explained:
MR. LERUM. I think what I will try to say will not take that long. 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 also have the right to strike. That is a different matter. We are only talking about organizing, uniting as a
union. With regard to the right to strike, everyone will remember that in the Bill of Rights, there is a provision
that the right to form associations or societies whose purpose is not contrary to law shall not be abridged. Now
then, if the purpose of the state is to prohibit the strikes coming from employees exercising government
functions, that could be done because the moment that is prohibited, then the union which will go on strike will
be an illegal union. And that provision is carried in Republic Act 875. In Republic Act 875, workers, including
those from the government-owned and controlled, are allowed to organize but they are prohibited from striking.
So, the fear of our honorable Vice- President is unfounded. It does not mean that because we approve this
resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, that subject is now
being discussed in the Committee on Social Justice because we are trying to find a solution to this problem.
We know that this problem exist; that the moment we allow anybody in the government to strike, then what will
happen if the members of the Armed Forces will go on strike? What will happen to those people trying to
protect us? So that is a matter of discussion in the Committee on Social Justice. But, I repeat, the right to form
an organization does not carry with it the right to strike. [Record of the Constitutional Commission, vol. 1, p.
569].
It will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974,
expressly banned strikes by employees in the Government, including instrumentalities exercising governmental functions, but
excluding entities entrusted with proprietary functions:
.Sec. 11. Prohibition Against Strikes in the Government. — The terms and conditions of employment in the
Government, including any political subdivision or instrumentality thereof, are governed by law and it is
declared to be the policy of this Act that employees therein shall not strike for the purpose of securing changes
or modification in their terms and conditions of employment. Such employees may belong to any labor
organization which does not impose the obligation to strike or to join in strike: Provided, however, That this
section shall apply only to employees employed in governmental functions and not those employed in
proprietary functions of the Government including but not limited to governmental corporations.
No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government
corporations established under the Corporation Code to organize and bargain collectively and those in the civil service to "form
organizations for purposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it
provided that "[t]he terms and conditions of employment of all government employees, including employees of government
owned and controlled corporations, shall be governed by the Civil Service Law, rules and regulations" [now Art. 276].
Understandably, the Labor Code is silent as to whether or not government employees may strike, for such are excluded from its
coverage [Ibid]. But then the Civil Service Decree [P.D. No. 807], is equally silent on the matter.
On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President
issued E.O. No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14
thereof, it is provided that "[t]he Civil Service law and rules governing concerted activities and strikes in the government service
shall be observed, subject to any legislation that may be enacted by Congress." The President was apparently referring to
Memorandum Circular No. 6, s. 1987 of the Civil Service Commission under date April 21, 1987 which, "prior to the enactment
by Congress of applicable laws concerning strike by government employees ... enjoins under pain of administrative sanctions, all
government officers and employees from staging strikes, demonstrations, mass leaves, walk-outs and other forms of mass
action which will result in temporary stoppage or disruption of public service." The air was thus cleared of the confusion. At
present, in the absence of any legislation allowing government employees to strike, recognizing their right to do so, or regulating
the exercise of the right, they are prohibited from striking, by express provision of Memorandum Circular No. 6 and as implied in
E.O. No. 180. [At this juncture, it must be stated that the validity of Memorandum Circular No. 6 is not at issue].
But are employees of the SSS covered by the prohibition against strikes?
The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all
branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled
corporations with original charters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service
are denominated as "government employees"] and that the SSS is one such government-controlled corporation with an original
charter, having been created under R.A. No. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos.
69870 & 70295, November 24,1988] and are covered by the Civil Service Commission's memorandum prohibiting strikes. This
being the case, the strike staged by the employees of the SSS was illegal.
The statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment [G.R. No. 60403, August 3,
1:983, 124 SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and
government employees with regard to the right to strike:
The general rule in the past and up to the present is that 'the terms and conditions of employment in the
Government, including any political subdivision or instrumentality thereof are governed by law" (Section 11, the
Industrial Peace Act, R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as
amended). Since the terms and conditions of government employment are fixed by law, government workers
cannot use the same weapons employed by workers in the private sector to secure concessions from their
employers. The principle behind labor unionism in private industry is that industrial peace cannot be secured
through compulsion by law. Relations between private employers and their employees rest on an essentially
voluntary basis. Subject to the minimum requirements of wage laws and other labor and welfare legislation, the
terms and conditions of employment in the unionized private sector are settled through the process of collective
bargaining. In government employment, however, it is the legislature and, where properly given delegated
power, the administrative heads of government which fix the terms and conditions of employment. And this is
effected through statutes or administrative circulars, rules, and regulations, not through collective bargaining
agreements. [At p. 13; Emphasis supplied].
Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971
Constitutional Convention, and quoted with approval by the Court in Alliance, to wit:
It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the
peculiar character of the public service, it must necessarily regard the right to strike given to unions in private
industry as not applying to public employees and civil service employees. It has been stated that the
Government, in contrast to the private employer, protects the interest of all people in the public service, and
that accordingly, such conflicting interests as are present in private labor relations could not exist in the
relations between government and those whom they employ. [At pp. 16-17; also quoted in National Housing
Corporation v. Juco, G.R. No. 64313, January 17,1985,134 SCRA 172,178-179].
E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the
same philosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved
are not among those fixed by law. Thus:
.SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by
law, may be the subject of negotiations between duly recognized employees' organizations and appropriate
government authorities.
The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector
to wit:
.SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the
resolution of complaints, grievances and cases involving government employees. In case any dispute remains
unresolved after exhausting all the available remedies under existing laws and procedures, the parties may
jointly refer the dispute to the [Public Sector Labor- Management] Council for appropriate action.
Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of
the terms and conditions of employment which are within the ambit of legislation or negotiate with the appropriate government
agencies for the improvement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be
referred to the Public Sector Labor - Management Council for appropriate action. But employees in the civil service may not
resort to strikes, walk-outs and other temporary work stoppages, like workers in the private sector, to pressure the Govemment
to accede to their demands. As now provided under Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the
Right of Government- Employees to Self- Organization, which took effect after the instant dispute arose, "[t]he terms and
conditions of employment in the government, including any political subdivision or instrumentality thereof and government-
owned and controlled corporations with original charters are governed by law and employees therein shall not strike for the
purpose of securing changes thereof."
II
The strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be
issued to restrain it.
It is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence,
the Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code
itself provides that terms and conditions of employment of government employees shall be governed by the Civil Service Law,
rules and regulations [Art. 276]. More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with
jurisdiction over unresolved labor disputes involving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over
the dispute.
This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as
amended, from assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein.
Unlike the NLRC, the Public Sector Labor - Management Council has not been granted by law authority to issue writs of
injunction in labor disputes within its jurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the
instant labor dispute, resort to the general courts of law for the issuance of a writ of injunction to enjoin the strike is appropriate.
Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus,
after issuing a writ of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the
respondent judge, in the same order, admonished the parties to refer the unresolved controversies emanating from their
employer- employee relationship to the Public Sector Labor - Management Council for appropriate action [Rollo, p. 86].
III
In their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply,
petitioners allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the
Court issue a writ of preliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding
payment thereof and to compel the SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil
Service Commission, dated May 5, 1989, which ruled that the officers of the SSSEA who are not preventively suspended and
who are reporting for work pending the resolution of the administrative cases against them are entitled to their salaries, year-end
bonuses and other fringe benefits and affirmed the previous order of the Merit Systems Promotion Board.
The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this
Court to issue an injunction, but to cause the execution of the aforesaid order, if it has already become final.
WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby
DENIED and the decision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners'
"Petition/Application for Preliminary and Mandatory Injunction" dated December 13,1988 is DENIED.
SO ORDERED.
SUPREME COURT
Manila
FIRST DIVISION
A.M. No. P-88-269 December 29, 1995
OSCAR ABETO, complainant,

vs.
MANUEL GARCESA, Stenographic Reporter, Regional Trial Court, Branch 45, Bacolod City, respondent.
DAVIDE, JR., J.:
In a verified complaint dated 19 October 1988 and received by the Office of the Court Administrator on 18 November 1988, the
complainant charges the respondent with having misrepresented himself as a full-fledged lawyer and having acted as one of the
authorized representatives of the complainant and his co-complainants in labor cases filed with Regional Arbitration Branch VI of
the National Labor Relations Commission (NLRC) of Bacolod City despite the fact that he is a court employee.
Then Deputy Court Administrator Meynardo A. Tiro referred the complaint to the respondent through the Presiding Judge of
Branch 45 of the Regional Trial Court (RTC) of Bacolod City and required him to comment thereon.
In his Comment/Explanation, the respondent admits having assisted the complainants in the aforementioned labor cases; denies
having misrepresented himself as a lawyer; and explained the nature of the assistance he had given to the complainants.
According to him, when he first met complainant Abeto in December 1986, he frankly informed the latter that he is only a court
employee and that he is only assisting or helping Mr. Arturo Ronquillo, for at that time no lawyer dared to assist the
complainants in filing their cases. This Arturo Ronquillo is the Vice President of the Workers Amalgamated Union of the
Philippines (WAUP) whose assistance was sought by complainant Abeto and the other complainants in the labor cases for the
filing and prosecution of their cases. The respondent further alleges that the instant complaint arose out of ill-feeling and is
designed to malign and destroy his name and reputation as a court employee. He manifests, however, that "in the event that his
good motives and intentions in helping the poor and downtrodden workers/employees of BISCOM Central would be considered
not in consonance with Memorandum Circular No. 17 dated September 4, 1986 issued by the Executive Department and is
prohibited by Administrative Circular No. 5 issued by the Supreme Court, Manila, then [he] will readily and obediently submit to
the sound discretion of the Honorable Supreme Court."
On 28 August 1989, then Deputy Court Administrator Juanito Bernad submitted a memorandum recommending that the
complaint against the respondent for misrepresentation be dismissed, but that he be advised to heed the Civil Service Rules and
this Court's memorandum circular prohibiting government employees from engaging in any private business, vocation, or
profession without permission from this Court.
In his Letter-Petition dated 11 July 1995, the respondent asked for an early resolution of this case, which he considers baseless
as it is but an offshoot of a petty misunderstanding between him and the complainant. He also invited the attention of this Court
to the complainant's affidavit of desistance and letter to the Court requesting that this case be dismissed. He later submitted the
said affidavit and letter.
In the resolution of 18 September 1995, this Court directed the Office of the Court Administrator to reevaluate this case and to
submit a report thereon.
On 13 October 1995, Deputy Court Administrator Zenaida N. Elepaño submitted a Memorandum, duly approved by the Court
Administrator, wherein she made the following findings and conclusion:
It is worth mentioning here Sec. 12, Rule XVIII of the Revised Civil Service Rules which provides that:
Sec. 12. No officer or employee shall engage directly in any private business, vocation, or profession or be
connected with any commercial, credit, agricultural or industrial undertaking without a written permission from
the head of Department: Provided, That this prohibition will be absolute in the case of those officers and
employees whose duties and responsibilities require that their entire time be at the disposal of the
Government: Provided, further, That if an employee is granted permission to engage, in outside activities, the
time so devoted outside of office hours should be fixed by the chief of the agency to the end that it will not
impair in any way the efficiency of the officer or employee: And provided, finally, That no permission is
necessary in the case of investments, made by an officer or employee, which do not involve any real or
apparent conflict between his private interests and public duties, or in any way influence him in the discharge of
his duties, and he shall not take part in the management of the enterprise or become an officer or member of
the board of directors.
Moreover in Administrative Circular No. 5 dated 4 October 1988 the Court expressed the view that
The entire time of Judiciary officials and employees must be devoted to government service to
insure efficient and speedy administration of justice considering the express prohibition in the
Rules of Court and the nature of their work which requires them to serve with the highest
degree of efficiency and responsibility, in order to maintain public confidence in the Judiciary.
These circumstances obtaining, we believe that the stenographer Garcesa merits at the very least a reprimand
for engaging in a limited law practice. (emphasis supplied)
She then recommends:
IN VIEW OF THE FOREGOING, it is respectfully recommended that the penalty of REPRIMAND be imposed
on Manuel Garcesa, Stenographer Reporter, RTC, Branch 45, Bacolod City for failure to heed the abovequoted
Civil Service rule and the Supreme Court Administrative Circular which prohibits government employees from
engaging in any private business, vocation, or profession without permission from the Court.
We agree with the recommendation of Deputy Court Administrator Elepaño. Indeed, per Annex "A" of the complaint, the
respondent and one Arturo Ronquillo signed as "Authorized Representatives" of the complainants in an Ex-Parte Formal
Manifestation dated 11 August 1988 in the following labor cases: RAB VI Cases Nos. 0272-86, 0304-86, 01-0067-87, 06-0295-
87, and 04-0202-87. And in his Comment/Explanation, he admitted having given or extended "casual assistance" to Mr. Arturo
Ronquillo in the filing and prosecution of the said cases. His justification therefor — to help the poor and downtrodden workers of
BISCOM Central — will not absolve him from administrative liability for the violation of Section 12, Rule XVIII of the Revised Civil
Service Rules and of the rulings of this Court in Valdez and in Rabanal which were incorporated in Administrative Circular No. 5
of 4 October 1988.
He could not, however, be liable for unauthorized practice of law, since there is no convincing evidence that he misrepresented
himself as a lawyer. Moreover, his appearance was in his capacity as one of the representatives of the complainants in the labor
cases and not as a lawyer. Under Section 6, Rule IV of the Revised Rules of Procedure of the NLRC in force at that time, a non-
lawyer may appear before the NLRC or any Labor Arbiter if he represents himself as a party to the case, represents an
organization or its members, or is a duly accredited member of a free legal aid staff of the Department of Labor and Employment
or of any other legal aid office accredited by the Department of Justice or the Integrated Bar of the Philippines.
Neither could he be liable under Memorandum Circular No. 17 dated 4 September 1986 of the Office of the President declaring
that the authority to grant permission to any official or employee to engage in outside activities shall be granted by the head of
the ministry (department) or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules. Said
Memorandum Circular No. 17 was declared by this Court inapplicable to officials or employees of the courts. Thus, in its
Administrative Circular No. 5 dated 4 October 1988, this Court stated:
However, in its En Banc resolution dated October 1, 1987, denying the request of Atty. Froilan L. Valdez of the
Office of Associate Justice Ameurfina Melencio-Herrera, to be commissioned as a Notary Public, the Court
expressed the view that the provisions of Memorandum Circular No. 17 of the Executive Department are not
applicable to officials or employees of the courts considering the express prohibition in the Rules of Court and
the nature of their work which requires them to serve with the highest degree of efficiency and responsibility, in
order to maintain public confidence in the Judiciary. The same policy was adopted in Administrative Matter No.
88-6-002-SC, June 21, 1988, where the court denied the request of Ms. Esther C. Rabanal, Technical Assistant
II, Leave Section, Office of the Administrative Services of this Court, to work as an insurance agent after office
hours including Saturdays, Sundays and holidays. Indeed, the entire time of Judiciary officials and employees
must be devoted to government service to insure efficient and speedy administration of justice.
ACCORDINGLY, all officials and employees of the Judiciary are hereby enjoined from being commissioned as
insurance agents or from engaging in any such related activities, and, to immediately desist therefrom if
presently engaged thereat.
This prohibition is directed against "moonlighting," which amounts to malfeasance in office (Biyaheros Mart Livelihood
Association, Inc. vs. Cabusao, 232 SCRA 707 [1994]).
WHEREFORE, for malfeasance in office consisting in the violation of Section 12, Rule XVIII of the Revised Civil Service Rules
and of the rulings of this Court of 1 October 1987 in the case of Atty. Froilan L. Valdez and of 21 June 1988 in the case of Ms.
Esther C. Rabanal embodied in Administrative Circular No. 5 dated 4 October 1988, respondent MANUEL GARCESA is hereby
REPRIMANDED and warned that the commission of the same or similar acts in the future shall be dealt with more severely.
SO ORDERED.
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-46930 June 10, 1988
DALE SANDERS, AND A.S. MOREAU, JR, petitioners,

vs.
HON. REGINO T. VERIDIANO II, as Presiding Judge, Branch I, Court of First Instance of Zambales, Olongapo City,
ANTHONY M. ROSSI and RALPH L. WYERS, respondents.
CRUZ, J.:
The basic issue to be resolved in this case is whether or not the petitioners were performing their official duties when they did
the acts for which they have been sued for damages by the private respondents. Once this question is decided, the other
answers will fall into place and this petition need not detain us any longer than it already has.
Petitioner Sanders was, at the time the incident in question occurred, the special services director of the U.S. Naval Station
(NAVSTA) in Olongapo City. 1 Petitioner Moreau was the commanding officer of the Subic Naval Base, which includes the said
station. 2 Private respondent Rossi is an American citizen with permanent residence in the Philippines,3 as so was private
respondent Wyer, who died two years ago. 4 They were both employed as gameroom attendants in the special services
department of the NAVSTA, the former having been hired in 1971 and the latter in 1969. 5
On October 3, 1975, the private respondents were advised that their employment had been converted from permanent full-time
to permanent part-time, effective October 18, 1975. 6 Their reaction was to protest this conversion and to institute grievance
proceedings conformably to the pertinent rules and regulations of the U.S. Department of Defense. The result was a
recommendation from the hearing officer who conducted the proceedings for the reinstatement of the private respondents to
permanent full-time status plus backwages. The report on the hearing contained the observation that "Special Services
management practices an autocratic form of supervision." 7
In a letter addressed to petitioner Moreau on May 17, 1976 (Annex "A" of the complaint), Sanders disagreed with the hearing
officer's report and asked for the rejection of the abovestated recommendation. The letter contained the statements that: a ) "Mr.
Rossi tends to alienate most co-workers and supervisors;" b) "Messrs. Rossi and Wyers have proven, according to their
immediate supervisors, to be difficult employees to supervise;" and c) "even though the grievants were under oath not to discuss
the case with anyone, (they) placed the records in public places where others not involved in the case could hear."
On November 7, 1975, before the start of the grievance hearings, a-letter (Annex "B" of the complaint) purportedly corning from
petitioner Moreau as the commanding general of the U.S. Naval Station in Subic Bay was sent to the Chief of Naval Personnel
explaining the change of the private respondent's employment status and requesting concurrence therewith. The letter did not
carry his signature but was signed by W.B. Moore, Jr. "by direction," presumably of Moreau.
On the basis of these antecedent facts, the private respondent filed in the Court of First Instance of Olongapo City a for
damages against the herein petitioners on November 8, 1976.8 The plaintiffs claimed that the letters contained libelous
imputations that had exposed them to ridicule and caused them mental anguish and that the prejudgment of the grievance
proceedings was an invasion of their personal and proprietary rights.
The private respondents made it clear that the petitioners were being sued in their private or personal capacity. However, in a
motion to dismiss filed under a special appearance, the petitioners argued that the acts complained of were performed by them
in the discharge of their official duties and that, consequently, the court had no jurisdiction over them under the doctrine of state
immunity.
After extensive written arguments between the parties, the motion was denied in an order dated March 8, 1977, 9 on the main
ground that the petitioners had not presented any evidence that their acts were official in nature and not personal torts,
moreover, the allegation in the complaint was that the defendants had acted maliciously and in bad faith. The same order issued
a writ of preliminary attachment, conditioned upon the filing of a P10,000.00 bond by the plaintiffs, against the properties of
petitioner Moreau, who allegedly was then about to leave the Philippines. Subsequently, to make matters worse for the
defendants, petitioner Moreau was declared in a default by the trial court in its order dated August 9, 1977. The motion to lift the
default order on the ground that Moreau's failure to appear at the pre-trial conference was the result of some misunderstanding,
and the motion for reconsideration of the denial of the motion to dismiss, which was filed by the petitioner's new lawyers, were
denied by the respondent court on September 7, 1977.
This petition for certiorari, prohibition and preliminary injunction was thereafter filed before this Court, on the contention that the
above-narrated acts of the respondent court are tainted with grave abuse of discretion amounting to lack of jurisdiction.
We return now to the basic question of whether the petitioners were acting officially or only in their private capacities when they
did the acts for which the private respondents have sued them for damages.
It is stressed at the outset that the mere allegation that a government functionary is being sued in his personal capacity will not
automatically remove him from the protection of the law of public officers and, if appropriate, the doctrine of state immunity. By
the same token, the mere invocation of official character will not suffice to insulate him from suability and liability for an act
imputed to him as a personal tort committed without or in excess of his authority. These well-settled principles are applicable not
only to the officers of the local state but also where the person sued in its courts pertains to the government of a foreign state, as
in the present case.
The respondent judge, apparently finding that the complained acts were prima facie personal and tortious, decided to proceed to
trial to determine inter alia their precise character on the strength of the evidence to be submitted by the parties. The petitioners
have objected, arguing that no such evidence was needed to substantiate their claim of jurisdictional immunity. Pending
resolution of this question, we issued a temporary restraining order on September 26, 1977, that has since then suspended the
proceedings in this case in the court a quo.
In past cases, this Court has held that where the character of the act complained of can be determined from the pleadings
exchanged between the parties before the trial, it is not necessary for the court to require them to belabor the point at a trial still
to be conducted. Such a proceeding would be superfluous, not to say unfair to the defendant who is subjected to unnecessary
and avoidable inconvenience.
Thus, in Baer v. Tizon, 10 we held that a motion to dismiss a complaint against the commanding general of the Olongapo Naval
Base should not have been denied because it had been sufficiently shown that the act for which he was being sued was done in
his official capacity on behalf of the American government. The United States had not given its consent to be sued. It was the
reverse situation in Syquia v. Almeda Lopez," where we sustained the order of the lower court granting a where we motion to
dismiss a complaint against certain officers of the U.S. armed forces also shown to be acting officially in the name of the
American government. The United States had also not waived its immunity from suit. Only three years ago, in United States of
America v. Ruiz, 12 we set aside the denial by the lower court of a motion to dismiss a complaint for damages filed against the
United States and several of its officials, it appearing that the act complained of was governmental rather than proprietary, and
certainly not personal. In these and several other cases 13 the Court found it redundant to prolong the other case proceedings
after it had become clear that the suit could not prosper because the acts complained of were covered by the doctrine of state
immunity.
It is abundantly clear in the present case that the acts for which the petitioners are being called to account were performed by
them in the discharge of their official duties. Sanders, as director of the special services department of NAVSTA, undoubtedly
had supervision over its personnel, including the private respondents, and had a hand in their employment, work assignments,
discipline, dismissal and other related matters. It is not disputed that the letter he had written was in fact a reply to a request
from his superior, the other petitioner, for more information regarding the case of the private respondents.14 Moreover, even in
the absence of such request, he still was within his rights in reacting to the hearing officer's criticism—in effect a direct attack
against him—-that Special Services was practicing "an autocratic form of supervision."
As for Moreau,what he is claimed to have done was write the Chief of Naval Personnel for concurrence with the conversion of
the private respondents' type of employment even before the grievance proceedings had even commenced. Disregarding for the
nonce the question of its timeliness, this act is clearly official in nature, performed by Moreau as the immediate superior of
Sanders and directly answerable to Naval Personnel in matters involving the special services department of NAVSTA In fact, the
letter dealt with the financial and budgetary problems of the department and contained recommendations for their solution,
including the re-designation of the private respondents. There was nothing personal or private about it.
Given the official character of the above-described letters, we have to conclude that the petitioners were, legally speaking, being
sued as officers of the United States government. As they have acted on behalf of that government, and within the scope of their
authority, it is that government, and not the petitioners personally, that is responsible for their acts. Assuming that the trial can
proceed and it is proved that the claimants have a right to the payment of damages, such award will have to be satisfied not by
the petitioners in their personal capacities but by the United States government as their principal. This will require that
government to perform an affirmative act to satisfy the judgment, viz, the appropriation of the necessary amount to cover the
damages awarded, thus making the action a suit against that government without its consent.
There should be no question by now that such complaint cannot prosper unless the government sought to be held ultimately
liable has given its consent to' be sued. So we have ruled not only in Baer but in many other decisions where we upheld the
doctrine of state immunity as applicable not only to our own government but also to foreign states sought to be subjected to the
jurisdiction of our courts. 15
The practical justification for the doctrine, as Holmes put it, is that "there can be no legal right against the authority which makes
the law on which the right depends.16 In the case of foreign states, the rule is derived from the principle of the sovereign equality
of states which wisely admonishes that par in parem non habet imperium and that a contrary attitude would "unduly vex the
peace of nations." 17 Our adherence to this precept is formally expressed in Article II, Section 2, of our Constitution, where we
reiterate from our previous charters that the Philippines "adopts the generally accepted principles of international law as part of
the law of the land.
All this is not to say that in no case may a public officer be sued as such without the previous consent of the state. To be sure,
there are a number of well-recognized exceptions. It is clear that a public officer may be sued as such to compel him to do an
act required by law, as where, say, a register of deeds refuses to record a deed of sale; 18 or to restrain a Cabinet member, for
example, from enforcing a law claimed to be unconstitutional; 19 or to compel the national treasurer to pay damages from an
already appropriated assurance fund; 20 or the commissioner of internal revenue to refund tax over-payments from a fund
already available for the purpose; 21 or, in general, to secure a judgment that the officer impleaded may satisfy by himself without
the government itself having to do a positive act to assist him. We have also held that where the government itself has violated
its own laws, the aggrieved party may directly implead the government even without first filing his claim with the Commission on
Audit as normally required, as the doctrine of state immunity "cannot be used as an instrument for perpetrating an injustice." 22
This case must also be distinguished from such decisions as Festejo v. Fernando, 23 where the Court held that a bureau director
could be sued for damages on a personal tort committed by him when he acted without or in excess of authority in forcibly taking
private property without paying just compensation therefor although he did convert it into a public irrigation canal. It was not
necessary to secure the previous consent of the state, nor could it be validly impleaded as a party defendant, as it was not
responsible for the defendant's unauthorized act.
The case at bar, to repeat, comes under the rule and not under any of the recognized exceptions. The government of the United
States has not given its consent to be sued for the official acts of the petitioners, who cannot satisfy any judgment that may be
rendered against them. As it is the American government itself that will have to perform the affirmative act of appropriating the
amount that may be adjudged for the private respondents, the complaint must be dismissed for lack of jurisdiction.
The Court finds that, even under the law of public officers, the acts of the petitioners are protected by the presumption of good
faith, which has not been overturned by the private respondents. Even mistakes concededly committed by such public officers
are not actionable as long as it is not shown that they were motivated by malice or gross negligence amounting to bad
faith.24 This, to, is well settled .25 Furthermore, applying now our own penal laws, the letters come under the concept of privileged
communications and are not punishable, 26 let alone the fact that the resented remarks are not defamatory by our standards. It
seems the private respondents have overstated their case.
A final consideration is that since the questioned acts were done in the Olongapo Naval Base by the petitioners in the
performance of their official duties and the private respondents are themselves American citizens, it would seem only proper for
the courts of this country to refrain from taking cognizance of this matter and to treat it as coming under the internal
administration of the said base.
The petitioners' counsel have submitted a memorandum replete with citations of American cases, as if they were arguing before
a court of the United States. The Court is bemused by such attitude. While these decisions do have persuasive effect upon us,
they can at best be invoked only to support our own jurisprudence, which we have developed and enriched on the basis of our
own persuasions as a people, particularly since we became independent in 1946.
We appreciate the assistance foreign decisions offer us, and not only from the United States but also from Spain and other
countries from which we have derived some if not most of our own laws. But we should not place undue and fawning reliance
upon them and regard them as indispensable mental crutches without which we cannot come to our own decisions through the
employment of our own endowments We live in a different ambience and must decide our own problems in the light of our own
interests and needs, and of our qualities and even idiosyncrasies as a people, and always with our own concept of law and
justice.
The private respondents must, if they are still sominded, pursue their claim against the petitioners in accordance with the laws of
the United States, of which they are all citizens and under whose jurisdiction the alleged offenses were committed. Even
assuming that our own laws are applicable, the United States government has not decided to give its consent to be sued in our
courts, which therefore has not acquired the competence to act on the said claim,.
WHEREFORE, the petition is GRANTED. The challenged orders dated March 8,1977, August 9,1977, and September 7, 1977,
are SET ASIDE. The respondent court is directed to DISMISS Civil Case No. 2077-O. Our Temporary restraining order of
September 26,1977, is made PERMANENT. No costs.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. L-47346 April 8, 1941
FRANCISCO B. REYES, appellant,

vs.
JAIME HERNANDEZ, in his capacity as Auditor General of the Philippines, appellee.
Consolador Reyes Palad and Horacio M. Abdon for appellant.

Office of the Solicitor-General Ozaeta and Solicitor Arguelles for appellee.
LAUREL, J.:
The appellant here, Francisco B. Reyes, was a justice of the peace of Talacogon, Agusan, who, by order of January 28, 1935,
was temporarily suspended from office by the Secretary of Justice. In view of this order of suspension, the appellant ceased to
discharge his duties as justice of the peace from February 7, 1935, until he was definitely separated from the service on
November 14, 1936, in view of the appointment and qualification of his successor in virtue of section 4, Article XV, of the
Constitution of the Philippines. He presented a claim for the payment of his salary during the period of his suspension which was
disallowed by the appellee, as Auditor General of the Philippines, on the ground that, under section 260 of the Revised
Administrative Code, payment of salary accruing during the period of suspension could only be made "upon subsequent
reinstatement of the suspended person or upon his exoneration, if death should render reinstatement impossible." This is now
an appeal from that decision of the Auditor General.
It appears from the order of January 28, 1935, of the Secretary of Justice that the appellant was suspended from office because
the charges preferred against him "have been substantiated by the evidence adduced during the investigation" pending final
action by the Governor-General. If no final action was taken in the administrative case against him, it was because of the
appointment and qualification of his successor pursuant to the aforesaid transitory provisions of the Constitution. The
appointment of his successor was the indirect removal of the appellant, and it is beyond question that this action of the Chief
Executive is neither reinstatement nor exoneration of the appellant The fact that subsequently the application of the appellant for
retirement gratuity under Commonwealth Act No. 331 was favorably recommended by the Undersecretary of Justice in his
indorsement of January 21, 1939, may tend to prove incongruity of official action but does not fill the void created on account of
the failure to order the reinstatement or exoneration required in section 260 of the Revised Administrative Code. As a general
proposition, a public official is not entitled to any compensation if he has not rendered any service, and the justification for the
payment of salary during the period of suspension is that the suspension was unjustified or that the official was innocent. Hence,
the requirement that, to entitle to payment of salary during suspension, there must be either reinstatement of the suspended
person or exoneration if death should render reinstatement impossible.
The appeal is hereby dismissed, with costs against the appellant. So ordered.
SUPREME COURT
Manila
EN BANC
G.R. No. 79253 March 1, 1993
UNITED STATES OF AMERICA and MAXINE BRADFORD, petitioners,

vs.
HON. LUIS R. REYES, as Presiding Judge of Branch 22, Regional Trial Court of Cavite, and NELIA T.
MONTOYA, respondents.
Luna, Sison & Manas for petitioners.
Evelyn R. Dominguez for private respondent.
DAVIDE, JR., J.:
This is a petition for certiorari and prohibition under Rule 65 of the Rules of Court. Petitioners would have Us annul and set
aside, for having been issued with grave abuse of discretion amounting to lack of jurisdiction, the Resolution of 17 July 1987 of
Branch 22 of the Regional Trial Court (RTC) of Cavite in Civil Case No. 224-87. The said resolution denied, for lack of merit,
petitioners' motion to dismiss the said case and granted the private respondent's motion for the issuance of a writ of preliminary
attachment. Likewise sought to be set aside is the writ of attachment subsequently issued by the RTC on 28 July 1987.
The doctrine of state immunity is at the core of this controversy.
The readings disclose the following material operative facts:
Private respondent, hereinafter referred to as Montoya, is an American citizen who, at the time material to this case, was
employed as an identification (I.D.) checker at the U.S. Navy Exchange (NEX) at the Joint United States Military Assistance
Group (JUSMAG) headquarters in Quezon City. She is married to one Edgardo H. Montoya, a Filipino-American serviceman
employed by the U.S. Navy and stationed in San Francisco, California. Petitioner Maxine Bradford, hereinafter referred to as
Bradford, is likewise an American citizen who was the activity exchange manager at the said JUSMAG Headquarters.
As a consequence of an incident which occurred on 22 January 1987 whereby her body and belongings were searched after
she had bought some items from the retail store of the NEX JUSMAG, where she had purchasing privileges, and while she was
already at the parking area, Montoya filed on
7 May 1987 a complaint1 with the Regional Trial Court of her place of residence — Cavite — against Bradford for damages due
to the oppressive and discriminatory acts committed by the latter in excess of her authority as store manager of the NEX
JUSMAG. The complaint, docketed as Civil Case No. 224-87 and subsequently raffled off to Branch 22 at Imus, Cavite, alleges
the following, material operative facts:
xxx xxx xxx
3. That on January 22, 1987, after working as the duty ID checker from 7:45 to 11:45 a.m., plaintiff went
shopping and left the store at l2:00 noon of that day;
4. That on the way to her car while already outside the store, Mrs. Yong Kennedy, also an ID checker, upon the
instruction of the store manager, Ms. Maxine Bradford, approached plaintiff and informed her that she needed
to search her bags;
5. That plaintiff went to defendant, who was then outside the store talking to some men, to protest the search
but she was informed by the defendant that the search is to be made on all Jusmag employees that day;
6. That the search was thereafter made on the person, car and bags of the plaintiff by Mrs. Yong Kennedy in
the presence of the defendant and numerous curious onlookers;
7. That having found nothing irregular on her person and belongings, plaintiff was allowed to leave the
premises;
8. That feeling aggrieved, plaintiff checked the records and discovered that she was the only one whose person
and belonging was (sic) searched that day contrary to defendant's allegation as set forth in par. 5 hereof and as
evidenced by the memorandum dated January 30, 1987 made by other Filipino Jusmag employees, a
photocopy of which is hereto attached as ANNEX "A" and made integral (sic) part hereof:
9. That moreover, a check with Navy Exchange Security Manager, R.L. Roynon on January 27, 1987 was
made and she was informed by Mr. Roynon that it is a matter of policy that customers and employees of NEX
Jusmag are not searched outside the store unless there is a very strong evidence of a wrongdoing;
10. That plaintiff knows of no circumstances sufficient to trigger suspicion of a wrongdoing on her part but on
the other hand, is aware of the propensity of defendant to lay suspicion on Filipinos for theft and/or shoplifting;
11. That plaintiff formally protested the illegal search on February 14, 1987 in a letter addressed to Mr. R.L.
Roynon, a photocopy of which is hereto attached as ANNEX "B" and made integral (sic) part hereof; but no
action was undertaken by the said officer;
12. That the illegal search on the person and belongings of the plaintiff in front of many people has subjected
the plaintiff to speculations of theft, shoplifting and such other wrongdoings and has exposed her to contempt
and ridicule which was caused her undue embarrassment and indignity;
13. That since the act could not have been motivated by other (sic) reason than racial discrimination in our own
land, the act constitute (sic) a blow to our national pride and dignity which has caused the plaintiff a feeling of
anger for which she suffers sleepless nights and wounded feelings;
14. That considering the above, plaintiff is entitled to be compensated by way of moral damages in the amount
of P500,000.00;
15. That to serve as a deterrent to those inclined to follow the oppressive act of the defendant, exemplary
damages in the amount of P100,000.00 should also be awarded.2
She then prayed for judgment ordering Bradford to pay her P500,000.00 as moral damages, P100,000.00 as exemplary
damages and reasonable attorney's fees plus the costs of the suit.3
Summons and a copy of the complaint were served on Bradford on 13 May 1987. In response thereto, she filed two (2) motions
for extension of time to file her Answer which were both granted by the trial court. The first was filed through Atty. Miguel
Famularcano, Jr., who asked for a 20-day extension from 28 May 1987. The second, filed through the law firm of Luna, Sison
and Manas, sought a 15-day extension from 17 June 1987.4 Thus, Bradford had up to 1 July 1987 to file her Answer. Instead of
doing so, however, she, together with the government of the United States of America (hereinafter referred to as the public
petitioner), filed on 25 June 1987, also through the law firm of Luna, Sison and Manas, a Motion to Dismiss5 based on the
following grounds:
1) (This) action is in effect a suit against the United States of America, a foreign sovereign immune from suit
without its consent for the cause of action pleaded in the complaint; and
2) Defendant, Maxine Bradford, as manager of the US Navy Exchange Branch at JUSMAG, Quezon City, is
immune from suit for act(s) done by her in the performance of her official functions under the Philippines-United
States Military Assistance Agreement of 1947 and Military Bases Agreement of 1947, as amended.6
In support of the motion, the petitioners claimed that JUSMAG, composed of an Army, Navy and Air Group, had been
established under the Philippine-United States Military Assistance Agreement entered into on 21 March 1947 to implement the
United States' program of rendering military assistance to the Philippines. Its headquarters in Quezon City is considered a
temporary installation under the provisions of Article XXI of the Military Bases Agreement of 1947. Thereunder, "it is mutually
agreed that the United States shall have the rights, power and authority within the bases which are necessary for the
establishment, use and operation and defense thereof or appropriate for the control thereof." The 1979 amendment of the
Military Bases Agreement made it clear that the United States shall have "the use of certain facilities and areas within the bases
and shall have effective command and control over such facilities and over United States personnel, employees, equipment and
material." JUSMAG maintains, at its Quezon City headquarters, a Navy Exchange referred to as the NEX-JUSMAG. Checking of
purchases at the NEX is a routine procedure observed at base retail outlets to protect and safeguard merchandise, cash and
equipment pursuant to paragraphs 2 and 4(b) of NAVRESALEACT SUBIC INST. 5500.1.7 Thus, Bradford's order to have
purchases of all employees checked on 22 January 1987 was made in the exercise of her duties as Manager of the NEX-
JUSMAG.
They further claimed that the Navy Exchange (NAVEX), an instrumentality of the U.S. Government, is considered essential for
the performance of governmental functions. Its mission is to provide a convenient and reliable source, at the lowest practicable
cost, of articles and services required for the well-being of Navy personnel, and of funds to be used for the latter's welfare and
recreation. Montoya's complaint, relating as it does to the mission, functions and responsibilities of a unit of the United States
Navy, cannot then be allowed. To do so would constitute a violation of the military bases agreement. Moreover, the rights,
powers and authority granted by the Philippine government to the United States within the U.S. installations would be illusory
and academic unless the latter has effective command and control over such facilities and over American personnel, employees,
equipment and material. Such rights, power and authority within the bases can only be exercised by the United States through
the officers and officials of its armed forces, such as Bradford. Baer vs. Tizon8 and United States of America vs.
Ruiz9 were invoked to support these claims.
On 6 July 1987, Montoya filed a motion for preliminary attachment 10 on the ground that Bradford was about to depart from the
country and was in the process of removing and/or disposing of her properties with intent to defraud her creditors. On 14 July
1987, Montoya filed her opposition to the motion to dismiss 11 alleging therein that the grounds proffered in the latter are bereft of
merit because (a) Bradford, in ordering the search upon her person and belongings outside the NEX JUSMAG store in the
presence of onlookers, had committed an improper, unlawful and highly discriminatory act against a Filipino employee and had
exceeded the scope of her authority; (b) having exceeded her authority, Bradford cannot rely on the sovereign immunity of the
public petitioner because her liability is personal; (c) Philippine courts are vested with jurisdiction over the case because
Bradford is a civilian employee who had committed the challenged act outside the U.S. Military Bases; such act is not one of
those exempted from the jurisdiction of Philippine courts; and (d) Philippine courts can inquire into the factual circumstances of
the case to determine whether or not Bradford had acted within or outside the scope of her authority.
On 16 July 1987, public petitioner and Bradford filed a reply to Montoya's opposition and an opposition to the motion for
preliminary attachment. 12
On 17 July 1987, 13 the trial court 14 resolved both the motion to dismiss and the motion for preliminary attachment in this wise:
On the motion to dismiss, the grounds and arguments interposed for the dismissal of this case are determined
to be not indubitable. Hence, the motion is denied for lack of merit.
The motion for preliminary attachment is granted in the interest of justice, upon the plaintiff's filing of a bond in
the sum of P50,000.00.
Upon Montoya's filing of the required bond, the trial court issued on 28 July 1987 an Order 15 decreeing the issuance of a writ of
attachment and directing the sheriff to serve the writ immediately at the expense of the private respondent. The writ of
attachment was issued on that same date. 16
Instead of filing a motion to reconsider the last two (2) orders, or an answer — insofar as Bradford is concerned — both the latter
and the public petitioner filed on 6 August 1987 the instant petition to annul and set aside the above Resolution of 17 July 1987
and the writ of attachment issued pursuant thereto. As grounds therefor, they allege that:
10. The respondent judge committed a grave abuse of discretion amounting to lack of jurisdiction in denying
the motion to dismiss the complaint in Civil Case No. 224-87 "for lack of merit." For the action was in effect a
suit against the United States of America, a foreign sovereign immune from suit without its consent for the
cause of action pleaded in the complaint, while its co-petitioner was immune from suit for act(s) done by her in
the performance of her official functions as manager of the US Navy Exchange Branch at the Headquarters of
JUSMAG, under the Philippines-United States Military Assistance Agreement of 1947 and Military Bases
Agreement of 1947, as amended. 17
On 5 August 1987, the trial court set Civil Case No. 224-87 for pre-trial and trial on 27 August 1987 at 9:30 a.m. 18
On 12 August 1987, this Court resolved to require the respondents to comment on the petition. 19
On 19 August 1987, petitioners filed with the trial court a Motion

to Suspend Proceedings 20 which the latter denied in its Order of 21 August 1987. 21
In the meantime, however, for failure to file an answer, Bradford was declared in default in Civil Case No. 224-87 and Montoya
was allowed to present her evidence ex-parte. 22 She thus took the witness stand and presented Mrs. Nam Thi Moore and Mrs.
Miss Yu as her witnesses.
23
On 10 September 1987, the trial court rendered its decision in Civil Case No. 224-87, the dispositive portion of which reads:
Prescinding from the foregoing, it is hereby determined that the unreasonable search on the plaintiff's person
and bag caused (sic) done recklessly and oppressively by the defendant, violated, impaired and undermined
the plaintiff's liberty guaranteed by the Constitution, entitling her to moral and exemplary damages against the
defendant. The search has unduly subjected the plaintiff to intense humiliation and indignities and had
consequently ridiculed and embarrassed publicly said plaintiff so gravely and immeasurably.
WHEREFORE, judgment is hereby rendered for the plaintiff and against the defendant Maxine Bradford
assessing the latter to pay unto the former the sums of P300,000.00 for moral damages, P100,000.00 for
exemplary damages and P50,000.00 for actual expenses and attorney's fees.
No costs.
SO ORDERED. 24
Bradford received a copy of the decision on 21 September 1987. On that same date, she and the public petitioner filed with this
Court a Petition for Restraining Order 25 which sought to have the trial court's decision vacated and to prevent the execution of
the same; it was also prayed that the trial court be enjoined from continuing with Civil Case No. 224-87. We noted this pleading
in the Resolution of 23 September 1987. 26
In the meantime, since no motion for reconsideration or appeal had been interposed by Bradford challenging the 10 September
1987 Decision which she had received on 21 September 1987, respondent Judge issued on 14 October 1987 an order directing
that an entry of final judgment be made. A copy thereof was received by Bradford on 21 October, 1987. 27
28
Also on 14 October 1987, Montoya filed her Comment with Opposition to the Petition for Restraining Order. Respondent
Judge had earlier filed his own Comment to the petition on 14 September 1987. 29
On 27 October 1987, Montoya filed before the trial court a motion for the execution of the Decision of 10 September 1987 which
petitioners opposed on the ground that although this Court had not yet issued in this case a temporary restraining order, it had
nevertheless resolved to require the respondents to comment on the petition. It was further averred that execution thereof would
cause Bradford grave injury; moreover, enforcement of a writ of execution may lead to regrettable incidents and unnecessarily
complicate the situation in view of the public petitioner's position on the issue of the immunity of its employees. In its Resolution
of 11 November 1987, the trial court directed the issuance of a writ of execution. 30
Consequently, the petitioners filed on 4 December 1987, a Manifestation and Motion reciting the foregoing incidents obtaining
before the trial court and praying that their petition for a restraining order be resolved. 31
On 7 December 1987, this Court issued a Temporary Restraining Order "ENJOINING the respondents and the Provincial Sheriff
of Pasig, Metro Manila, from enforcing the Decision dated September 10, 1987, and the Writs of Attachment and Execution
issued in Civil Case No. 224-87." 32
On 28 November 1988, after the private respondent filed a Rejoinder to the Consolidated Reply to the Comments filed by the
petitioners, this Court gave due course to the petition and required the parties to submit their respective memoranda-Petitioners
filed their Memorandum on 8 February
1989 33 while private respondent filed her Memorandum on 14 November
1990. 34
The kernel issue presented in this case is whether or not the trial court committed grave abuse of discretion in denying the
motion to dismiss based on the following grounds: (a) the complaint in Civil Case No. 224-87 is in effect a suit against the public
petitioner, a foreign sovereign immune from suit which has not given consent to such suit and (b) Bradford is immune from suit
for acts done by her in the performance of her official functions as manager of the U.S. Navy Exchange of JUSMAG pursuant to
the Philippines-United States Military Assistance Agreement of 1947 and the Military Bases Agreement of 1947, as amended.
Aside from maintaining the affirmative view, the public petitioner and Bradford even go further by asserting that even if the
latter's act were ultra vires she would still be immune from suit for the rule that public officers or employees may be sued in their
personal capacity for ultra vires and tortious acts is "domestic law" and not applicable in International Law. It is claimed that the
application of the immunity doctrine does not turn upon the lawlessness of the act or omission attributable to the foreign national
for if this were the case, the concept of immunity would be meaningless as inquiry into the lawlessness or illegality of the act or
omission would first have to be made before considering the question of immunity; in other words, immunity will lie only if such
act or omission is found to be lawful.
On the other hand, Montoya submits that Bradford is not covered by the protective mantle of the doctrine of sovereign immunity
from suit as the latter is a mere civilian employee of JUSMAG performing non-governmental and proprietary functions. And even
assuming arguendo that Bradford is performing governmental functions, she would still remain outside the coverage of the
doctrine of state immunity since the act complained of is ultra vires or outside the scope of her authority. What is being
questioned is not the fact of search alone, but also the manner in which the same was conducted as well as the fact of
discrimination against Filipino employees. Bradford's authority to order a search, it is asserted, should have been exercised with
restraint and should have been in accordance with the guidelines and procedures laid down by the cited "NAVRESALEACT,
Subic Inst." Moreover, ultra vires acts of a public officer or employee, especially tortious and criminal acts, are his private acts
and may not be considered as acts of the State. Such officer or employee alone is answerable for any liability arising therefrom
and may thus be proceeded against in his personal capacity.
Montoya further argues that both the acts and person of Bradford are not exempt from the Philippine courts' jurisdiction because
(a) the search was conducted in a parking lot at Scout Borromeo, Quezon City, outside the JUSMAG store and, therefore,
outside the territorial control of the U.S. Military Bases in the Philippines; (b) Bradford does not possess diplomatic immunity
under Article 16(b) of the 1953 Military Assistance Agreement creating the JUSMAG which provides that only the Chief of the
Military Advisory Group and not more than six (6) other senior members thereof designated by him will be accorded diplomatic
immunity; 35 and (c) the acts complained of do not fall under those offenses where the U.S. has been given the right to exercise
its jurisdiction (per Article 13 of the 1947 Military Bases Agreement, as amended by the, Mendez-Blair Notes of 10 August
1965). 36
Finally, Montoya maintains that at the very least, Philippine courts may inquire into the factual circumstances of the case to
determine whether petitioner Bradford is immune from suit or exempt from Philippine jurisdiction. To rule otherwise would render
the Philippine courts powerless as they may be easily divested of their jurisdiction upon the mere invocation of this principle of
immunity from suit.
A careful review of the records of this case and a judicious scrutiny of the arguments of both parties yield nothing but the
weakness of the petitioners' stand. While this can be easily demonstrated, We shall first consider some procedural matters.
Despite the fact that public petitioner was not impleaded as a defendant in Civil Case No. 224-87, it nevertheless joined Bradford
in the motion to dismiss — on the theory that the suit was in effect against it — without, however, first having obtained leave of
court to intervene therein. This was a procedural lapse, if not a downright improper legal tack. Since it was not impleaded as an
original party, the public petitioner could, on its own volition, join in the case only by intervening therein; such intervention, the
grant of which is discretionary upon the court, 37 may be allowed only upon a prior motion for leave with notice to all the parties
in the action. Of course, Montoya could have also impleaded the public petitioner as an additional defendant by amending the
complaint if she so believed that the latter is an indispensible or necessary party.
Since the trial court entertained the motion to dismiss and the subsequent pleadings filed by the public petitioner and Bradford, it
may be deemed to have allowed the public petitioner to intervene. Corollarily, because of its voluntary appearance, the public
petitioner must be deemed to have submitted itself to the jurisdiction of the trial court.
Moreover, the said motion does not specify any of the grounds for a motion to dismiss enumerated in Section 1, Rule 16 of the
Rules of Court. It merely recites state immunity on the part of the public petitioner and immunity on the part of Bradford for the
reason that the act imputed to her was done in the performance of her official functions. The upshot of this contention is
actually lack of cause of action — a specific ground for dismissal under the aforesaid Rule — because assuming arguendo that
Montoya's rights had been violated by the public petitioner and Bradford, resulting in damage or injury to the former, both would
not be liable therefor, and no action may be maintained thereon, because of the principle of state immunity.
The test of the sufficiency of the facts to constitute a cause of action is whether or not, admitting the facts alleged in the
complaint, the court could render a valid judgment upon the same, in accordance with the prayer in the complaint. 38
A motion to dismiss on the ground of failure to state a cause of action hypothetically admits the truth of the allegations in the
complaint.
In deciding a motion to dismiss, a court may grant, deny, allow amendments to the pleadings or defer the hearing and
determination of the same if the ground alleged does not appear to be indubitable. 39 In the instant case, while the trial court
concluded that "the grounds and arguments interposed for the dismissal" are not "indubitable," it denied the motion for lack of
merit. What the trial court should have done was to defer there solution on the motion instead of denying it for lack of merit.
In any event, whatever may or should have been done, the public petitioner and Bradford were not expected to accept the
verdict, making their recourse to this Court via the instant petition inevitable. Thus, whether the trial court should have deferred
resolution on or denied outright the motion to dismiss for lack of merit is no longer pertinent or relevant.
The complaint in Civil Case No. 224-87 is for damages arising from what Montoya describes as an "illegal search" on her
"person and belongings" conducted outside the JUSMAG premises in front of many people and upon the orders of Bradford,
who has the propensity for laying suspicion on Filipinos for theft or shoplifting. It is averred that the said search was directed only
against Montoya.
Howsoever viewed, it is beyond doubt that Montoya's cause of action is premised on the theory that the acts complained of were
committed by Bradford not only outside the scope of her authority — or more specifically, in her private capacity — but also
outside the territory where she exercises such authority, that is, outside the NEX-JUSMAG — particularly, at the parking area
which has not been shown to form part of the facility of which she was the manager. By their motion to dismiss, public petitioner
and Bradford are deemed to have hypothetically admitted the truth of the allegation in the complaint which support this theory.
The doctrine of state immunity and the exceptions thereto are summarized in Shauf vs. Court of Appeals, 40 thus:
I. The rule that a state may not be sued without its consent, now expressed in Article XVI Section 3, of the 1987
Constitution, is one of the generally accepted principles of international law that we have adopted as part of the
law of our land under Article II, Section 2. This latter provision merely reiterates a policy earlier embodied in the
1935 and 1973 Constitutions and also intended to manifest our resolve to abide by the rules of the international
community. 41
While the doctrine appears to prohibit only suits against the state without its consent, it is also applicable to
complaints filed against officials of the state for acts allegedly performed by them in the discharge of their
duties. The rule is that if the judgment against such officials will require the state itself to perform an affirmative
act to satisfy the same, such as the appropriation of the amount needed to pay the damages awarded against
them, the suit must be regarded as against the state itself although it has not been formally impleaded. 42 It
must be noted, however, that the rule is not so all-encompassing as to be applicable under all circumstances.
It is a different matter where the public official is made to account in his capacity as such for acts contrary to
law and injurious to the rights of plaintiff. As was clearly set forth by Justice Zaldivar in Director of the Bureau of
Telecommunications, et al. vs. Aligaen, etc., et al. 43 "Inasmuch as the State authorizes only legal acts by its
officers, unauthorized acts of government officials or officers are not acts of the State, and an action against the
officials or officers by one whose rights have been invaded or violated by such acts, for the protection of his
rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State officer or the director of a State department on
the ground that, while claiming to act or the State, he violates or invades the personal and property rights of the
plaintiff, under an unconstitutional act or under an assumption of authority which he does not have, is not a suit
against the State within
the constitutional provision that the State may not be sued without its consent." 44 The rationale for this ruling is
that the doctrinaire of state immunity cannot be used as an instrument for perpetrating an injustice. 45
In the case of Baer, etc. vs. Tizon, etc., et al., 46 it was ruled that:
There should be no misinterpretation of the scope of the decision reached by this Court.
Petitioner, as the Commander of the United States Naval Base in Olongapo, does not
possess diplomatic immunity. He may therefore be proceeded against in his personal
capacity, or when the action taken by him cannot be imputed to the government which he
represents.
47
Also, in Animos, et al. vs. Philippine Veterans Affairs Office, et al., we held that:
. . . it is equally well-settled that where a litigation may have adverse consequences on the
public treasury, whether in the disbursements of funds or loss of property, the public official
proceeded against not being liable in his personal capacity, then the doctrine of non-suability
may appropriately be invoked. It has no application, however, where the suit against such a
functionary had to be instituted because of his failure to comply with the duty imposed by
statute appropriating public funds for the benefit of plaintiff or petitioner. . . . .
The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not
apply and may not be invoked where the public official is being sued in his private and personal capacity as an
ordinary citizen. The cloak of protection afforded the officers and agents of the government is removed the
moment they are sued in their individual capacity. This situation usually arises where the public official acts
without authority or in excess of the powers vested in him. It is a well-settled principle of law that a public official
may be liable in his personal private capacity for whatever damage he may have caused by his act done
with malice and in bad faith, or beyond the scope of his authority or jurisdiction. 48
The agents and officials of the United States armed forces stationed in Clark Air Base are no exception to this
rule. In the case of United States of America, et al. vs. Guinto, etc., et al., ante, 49 we declared:
It bears stressing at this point that the above observations do not confer on the United States
of America Blanket immunity for all acts done by it or its agents in the Philippines. Neither may
the other petitioners claim that they are also insulated from suit in this country merely because
they have acted as agents of the United States in the discharge of their official functions.
Since it is apparent from the complaint that Bradford was sued in her private or personal capacity for acts allegedly done beyond
the scope and even beyond her place of official functions, said complaint is not then vulnerable to a motion to dismiss based on
the grounds relied upon by the petitioners because as a consequence of the hypothetical admission of the truth of the
allegations therein, the case falls within the exception to the doctrine of state immunity.
In the recent cases of Williams vs. Rarang 50 and Minucher vs. Court of Appeals, 51 this Court reiterated this exception. In the
former, this Court observed:
There is no question, therefore, that the two (2) petitioners actively participated in screening the features and
articles in the POD as part of their official functions. Under the rule that U.S. officials in the performance of their
official functions are immune from suit, then it should follow that petitioners may not be held liable for the
questioned publication.
It is to be noted, however, that the petitioners were sued in their personal capacities for their alleged tortious
acts in publishing a libelous article.
The question, therefore, arises — are American naval officers who commit a crime or tortious act while
discharging official functions still covered by the principle of state immunity from suit? Pursuing the question
further, does the grant of rights, power, and authority to the United States under the RP-US Bases Treaty cover
immunity of its officers from crimes and torts? Our answer is No.
In the latter, even on the claim of diplomatic immunity — which Bradford does not in fact pretend to have in the instant case as
she is not among those granted diplomatic immunity under Article 16(b) of the 1953 Military Assistance Agreement creating the
JUSMAG 52 — this Court ruled:
Even Article 31 of the Vienna Convention on Diplomatic Relations admits of exceptions. It reads:
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.
He shall also enjoy immunity from its civil and administrative jurisdiction except in the case of:
xxx xxx xxx
(c) an action relating to any professional or commercial activity exercised by

the diplomatic agent in the receiving State outside his official
functions (Emphasis supplied).
There can be no doubt that on the basis of the allegations in the complaint, Montoya has a sufficient and viable cause of action.
Bradford's purported non-suability on the ground of state immunity is then a defense which may be pleaded in the answer and
proven at the trial.
Since Bradford did not file her Answer within the reglementary period, the trial court correctly declared her in default upon motion
of the private respondent. The judgment then rendered against her on 10 September 1987 after the ex parte reception of the
evidence for the private respondent and before this Court issued the Temporary Restraining Order on 7 December 1987 cannot
be impugned. The filing of the instant petition and the knowledge thereof by the trial court did not prevent the latter from
proceeding with Civil Case No.
224-87. "It is elementary that the mere pendency of a special civil action for certiorari, commenced in relation to a case pending
before a lower Court, does not interrupt the course of the latter when there is no writ of injunction restraining it." 53
WHEREFORE, the instant petition is DENIED for lack of merit. The Temporary Restraining Order of 7 December 1987 is hereby
LIFTED.
Costs against petitioner Bradford.
SO ORDERED.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 123045 November 16, 1999
DEMETRIO R. TECSON, petitioner,

vs.
SANDIGANBAYAN AND PEOPLE OF THE PHILIPPINES, respondents.
QUISUMBING, J.:
This petition for review on certiorari, under Rule 45 of the Rules of Court, seeks to nullify the Decision dated June 30, 1995 and
the Resolution dated December 20, 1995 of the Sandiganbayan, First Division, in Criminal Case No. 18273. Petitioner was
found guilty of violating Section 3[c] of R.A. No. 3019, in the assailed decision which reads as follows:
WHEREFORE, the Court finds Demetrio Tecson y Robles guilty beyond reasonable doubt of the crime defined
in Section 3[c] of Republic Act 3019 and charged in the Information. Accordingly, the Court imposes upon him
the penalty of imprisonment of SIX (6) YEARS and ONE (1) MONTH, and perpetual disqualification from public
office. No civil indemnity is awarded for the reason that Tecson and Mrs. Salvacion D. Luzana entered into a
compromise agreement waiving his/her claims against the other.
So Ordered. 1
Petitioner was, at the time of the commission of the offense charged in the Information, the Municipal Mayor of Prosperidad,
Agusan del Sur.
Private complainant before the Sandiganbayan, Mrs. Salvacion Luzana, is a resident of Poblacion, Prosperidad, Agusan del Sur.
She is a neighbor of the petitioner. She claims to be a housewife who occasionally dabbles in farming. 2
The antecedent facts, which gave rise to the instant case, were synthesized by the Sandiganbayan as follows:
In the last week of September 1989, upon the offer of Tecson, he and Mrs. Luzana agreed to engage in an
investment business. They would sell tickets at P100.00 each which after 30 days would earn P200.00 or more.
She would buy appliances and cosmetics at a discount, with the use of the proceeds of the sales of tickets, and
resell them. No other details were disclosed on how the business would operate, and Tecson does not appear
to have contributed any monetary consideration to the capital. On September 27, 1989, they began selling
tickets.
Tecson also acted as agent selling tickets. He got on that day early in the morning two booklets of tickets, for
which he signed the covers of the booklets to acknowledge receipt. Before noon of the same day he returned
after having already sold 40 tickets in the amount of P4,000.00, bringing with him a Mayor's Permit in the name
of Mrs. Luzana for their business called "LD Assurance Privileges." He asked for a cash advance of P4,000.00
which he would use during the fiesta on September 29, 1989, and he would not release the Mayor's Permit
unless the cash advance was given him. Mrs. Luzana reluctantly acceded, saying that it was not the due date
yet, so he was getting the cash advances on his share. Tecson signed for the cash advance.
On October 3, 1989, Mrs. Luzana secured a Business Permit in accordance with the instructions of Tecson.
The permit was in her name but the same was for the operation of "Prosperidad Investment and Sub-
Dealership," the new name of the business. In the session of the Sangguniang Bayan of Prosperidad, Agusan
del Sur on October 17, 1989 presided over by Tecson, Resolution No. 100 was passed revoking the business
permit at the instance of the Provincial Director of the Department of Trade and Industry. 3
With the revocation of her business permit, private complainant below filed an administrative case against petitioner, for violation
of Section 3 [c], R.A. No. 3019 and Section 60 of B.P. Blg. 337 (then Local Government Code) with the Department of Interior
and Local Government (DILG). The complaint was docketed as Adm. Case No. SP-90-01 and referred to the Sangguniang
Panlalawigan of Agusan del Sur for appropriate action.
Not content with having instituted administrative proceedings, private complainant below also filed a civil case against petitioner
for damages with the Regional Trial Court, Branch 6, of Prosperidad, Agusan del Sur. This action was docketed as Civil Case
No. 716.
A complaint was likewise filed with the Ombudsman for violation of R.A. No. 3019, otherwise known as the "Anti-Graft and
Corrupt Practices Act." This complaint was docketed as OMB Case No. 3-8-02919. It was subsequently referred to the
Sandiganbayan, which took jurisdiction. The Information filed on October 28, 1992 reads:
That on or about September 23, 1989, in the Municipality of Prosperidad, Province of Agusan del Sur,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer,
being then the Municipal Mayor of Prosperidad, Agusan del Sur, while in the performance of his administrative
and official functions and committing the offense in relation to his office, did then and there willfully, unlawfully,
and criminally request and receive for his benefit the amount of P4,000.00, for and in consideration of the
issuance of a permit to operate an investment business, in favor of one Salvacion Luzana, a person for whom
the accused has in fact received and obtained a mayor's permit or license.
Contrary to law. 4
On July 29, 1991, the Sangguniang Panlalawigan of Agusan del Sur dismissed the administrative case.
On October 28, 1991, a compromise agreement was reached between the litigants in Civil Case No. 716. The trial court
approved the same on December 6, 1991.
On November 3, 1992, the Sandiganbayan issued an order for petitioner's arrest. He was immediately apprehended, but after
posting a property bond on December 2, 1992, was released on provisional liberty.
On February 23, 1993, Tecson was arraigned with the assistance of counsel de parte. He entered a plea of "not guilty." Trial
then proceeded on the merits.
On June 30, 1995, the Sandiganbayan, First Division rendered the assailed decision convicting appellant of violating R.A. No.
3019. Petitioner seasonably filed a motion for reconsideration. The respondent court denied the same in its resolution dated
December 20, 1995.
Hence, this instant petition. Petitioner contends that:
THE RESPONDENT COURT/SANDIGANBAYAN (1ST DIVISION) GRAVELY ABUSED ITS DISCRETION,

TANTAMOUNT TO LACK OF OR IN EXCESS OF JURISDICTION —
A- IN RULING UNREASONABLY THAT THE GUILT OF THE ACCUSED

HAD BEEN PROVEN BEYOND REASONABLE DOUBT DESPITE THE
CLEAR AND CONVINCING TESTIMONY OF THE NBI EXPERT SHOWING
THAT THE DOCUMENTS PRESENTED BY COMPLAINANTS AND
SUBJECTED FOR EXAMINATION BY NBI ARE DIFFERENT FROM THE
HANDWRITING OF THE ACCUSED, AND THEREFORE FABRICATED.
B- IN PROCEEDING WITH THE TRIAL AND CONVICTION DESPITE THE

EXISTENCE OF JUDGMENT OF ACQUITTAL RENDERED BY THE
SANGGUNIANG PANLALAWIGAN EXONERATING THE ACCUSED.
C- IN IGNORING THE DOCTRINE OF RES JUDICATA AND THE

CONSTITUTIONAL PROVISIONS OF DOUBLE JEOPARDY. 5
Otherwise stated, the issues are:
(1) Whether or not the decision of the Sangguniang Panlalawigan exonerating the accused
serves as a bar by prior judgment to the decision of the Sandiganbayan;
(2) Whether or not there was a violation of the Constitutional right of the accused against
double jeopardy; and
(3) Whether or not the guilt of the petitioner was proven beyond reasonable doubt.
The issues shall be discussed in seriatim.
Anent the first issue, petitioner contends that the dismissal of the administrative case before the Sangguniang Panlalawigan of
Agusan del Sur is conclusive and binding upon the parties. Relying on our ruling in B.F. Goodrich Philippines, Inc. v. Workmen's
Compensation Commission, 6 he theorizes that the rule, which prohibits the reopening of matters already determined by
competent judicial authority, applies to quasi-judicial bodies or administrative offices. Having been exonerated by the
Sangguniang Panlalawigan of Agusan del Sur in the administrative case, he now submits the same is res judicata and thus bars
the Sandiganbayan from hearing his case.
Petitioner's theory has no leg to stand on. First, it must be pointed out that res judicata is a doctrine of civil law. 7 It thus has no
bearing in the criminal proceedings before the Sandiganbayan. Second, it is a basic principle of the law on public officers that a
public official or employee is under a three-fold responsibility for violation of duty or for a wrongful act or omission. This simply
means that a public officer may be held civilly, criminally, and administratively liable for a wrongful doing. Thus, if such violation
or wrongful act results in damages to an individual, the public officer may be held civilly liable to reimburse the injured party. If
the law violated attaches a penal sanction, the erring officer may be punished criminally. Finally, such violation may also lead to
suspension, removal from office, or other administrative sanctions. This administrative liability is separate and distinct from the
penal and civil liabilities. Thus, the dismissal of an administrative case does not necessarily bar the filing of a criminal
prosecution for the same or similar acts, which were the subject of the administrative complaint. 8 We conclude, therefore, that
the decision of the Sangguniang Panlalawigan of Agusan del Sur exonerating petitioner in Administrative Case No. SP 90-01 is
no bar to the criminal prosecution before the Sandiganbayan.
As to the amicable settlement in Civil Case No. 716 with the Regional Trial Court, Branch 6, of Prosperidad, Agusan del Sur, it is
settled that a complaint for misconduct, malfeasance or misfeasance against a public officer or employee cannot just be
withdrawn at any time by the complainant. This is because there is a need to maintain the faith and confidence of the people in
the government and its agencies and instrumentalities. 9 The inescapable conclusion, therefore, is that the order of the trial court
dismissing Civil Case No. 716 did not bar the proceedings before the Sandiganbayan.
Regarding the second issue, petitioner contends that being tried before the Sandiganbayan violated his constitutional protection
against double jeopardy since the Sangguniang Panlalawigan of Agusan del Sur had already cleared him of all charges.
Art. III, Section 21 of the Constitution provides:
No person shall be twice put in jeopardy of punishment for the same offense. If an act is punished by a law and
an ordinance, conviction or acquittal under either shall constitute a bar to another prosecution for the same act.
Double jeopardy attaches only: (1) upon a valid indictment; (2) before a competent court; (3) after arraignment; (4) when a valid
plea has been entered; and (5) when the defendant was acquitted or convicted or the case was dismissed or otherwise
terminated without the express consent of the accused. 10 None of the foregoing applies to the hearings conducted by the
Sangguniang Panlalawigan of Agusan del Sur in Adm. Case No. SP 90-01. It must be stressed that the said proceedings were
not criminal, but administrative in nature. Hence, double jeopardy will not lie.
With respect to the third issue, petitioner argues that the Sandiganbayan erred in merely relying upon the alleged positive
testimony of the prosecutions witnesses when it rendered the judgment of conviction against him. He theorizes that such
testimony failed to prove his guilt beyond reasonable doubt. He further contends that it was error for the respondent court to
ignore the findings and conclusions of the NBI handwriting expert, especially as of the nine standard signatures, five were not
established to be genuine signatures. He submits that the Sandiganbayan should have applied the rule of falsus in uno, falsus in
omnibus in considering the documentary evidence against him.
Sec. 3 of R.A. No. 3019 states:
In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and hereby declared to be unlawful:
xxx xxx xxx
c. Directly or indirectly requesting or receiving any gift, present, or other pecuniary or material benefit, for
himself or for another, from any person for whom the public officer, in any manner or capacity, has secured or
obtained, or will secure or obtain, any government permit or license in consideration for the help given or to be
given, without prejudice to Section thirteen of this Act.
The crime charged has four elements, namely:
(1) The accused is a public officer;
(2) That in any manner or capacity he secured or obtained, or would secure or obtain, for a
person any government permit or license;
(3) That he directly or indirectly requested or received from said person any gift, present or
other pecuniary or material benefit for himself or for another; and
(4) That he requested or received the gift, present or other pecuniary or material benefit in
consideration for the help given or to be given.
As correctly pointed out by the Sandiganbayan, all of the aforementioned elements concur in the instant case. Its findings on this
concurrence are as follows:
First, Tecson was in September 1989 a public officer, being then the Municipal Mayor of Prosperidad, Agusan
del Sur.
Second, in his official capacity as Mayor, he signed and issued on September 27, 1989, a Mayor's Permit to
and in the name of Mrs. Luzana for their investment business in which he does not appear to have made any
contribution to the capital.
Third, before he released the Mayor's Permit to Mrs. Luzana, he requested and received on that same day,
September 27, 1989, at about 11:00 a.m., the amount of P4,000.00 to be used by him in the fiesta to be held
on September 29, 1989.
And, fourth, Tecson requested and received the amount of P4,000.00 as cash advance in consideration of the
help he gave—viz, issuance of Mayor's Permit which he would not deliver to Mrs. Luzana unless she acceded
to his request. Although Tecson expected to have a share in the profits of the business as partner of Mrs.
Luzana, the same was not yet due. In fact, there was as yet no profits to speak of, for they began operating
only in the morning of September 27, 1989, the very day the cash advance was requested and received. 11
The Supreme Court is not a trier of facts 12 and the factual findings of the Sandiganbayan are conclusive upon the Supreme
Court. The exceptions are: (1) where the conclusion is a finding grounded entirely on speculation, surmise and conjectures; (2)
where the inference made is manifestly mistaken; (3) where there is grave abuse of discretion; (4) where the judgment is based
on misapprehension of facts, and the findings of fact of the Sandiganbayan are premised on the absence of evidence and are
contradicted by evidence on record. 13 We have meticulously scrutinized the records of this case and find that petitioner has
shown no cause for this Court to apply any of the foregoing exceptions. We find that the evidence on record amply supports the
findings and conclusions of the respondent court.
Petitioner's assault on the credibility of the prosecution witnesses is unavailing. It is a time-tested doctrine that the trial court's
assessment of the credibility of a witness is entitled to great weight and is even conclusive and binding upon appellate
courts. 14 The Supreme Court will not interfere with the trial court's assessment of the credibility of the witnesses, absent any
indication or showing that the trial court has overlooked some material facts or has gravely abused its discretion. 15 Absent a
showing that the prosecution witnesses were actuated by any improper motive, their testimony is entitled to full faith and
credit. 16 Recourse to the records shows that no error of law or abuse of discretion was committed by the respondent court when
it gave credence to the positive testimony of the prosecution's witnesses as opposed to petitioner's bare denials. Denial, like
alibi, is a weak defense, which becomes even weaker in the face of positive testimony by prosecution witnesses. 17 Denial is a
self-serving negative evidence that cannot be given greater weight than the declaration of credible witnesses who testified on
affirmative matters. 18 Time-tested is the rule that between the positive assertions of prosecution witnesses and the negative
averments of the accused, the former indisputably deserves more credence and is entitled to greater evidentiary weight. 19
With regards the NBI expert's testimony, the respondent court found that:
[T]he function of a handwriting expert witness is "to place before the court data upon which the court can form
its own opinion." "The value of the opinions of experts on handwritings depends largely upon the ground upon
which they base their opinions and clearness with which they can demonstrate their correctness." So that "in
order that opinions of experts may have weight, the experts should go into the details of their examinations of
the writings which they have compared."
In this case Cruz was not asked to testify on the grounds, data or details on which he based his conclusion,
except generally that the questioned signatures were written in "a slow drawn manner" while the standard
signatures were executed in a "free and continuous manner" and that there is a pen stop in the questioned
signatures in the letter "s." He did not testify on other different characteristics such as pressure of the pen,
loops in the strokes, general alignment, structural formation, height of the letters, whether the letters were
standing, slanting forward or backward, etc. His testimony is therefore not of much help in determining the
genuineness of the questioned signatures. 20
Given these circumstances, petitioner's reliance on the doctrine of falsus in uno, falsus in omnibus will be unavailing. The maxim
is a rule of evidence. In affirming a rebuttable presumption of fact, the trier of facts, must consider all the evidence, other than
that found to be false and it is his duty to give effect to so much of it, if any, as found to be true. 21 The rule is merely permissive
and not mandatory. 22 It does not relieve the trier of facts from passing on credibility of the whole testimony or evidence
presented or excuse him from weighing the whole of the testimony or evidence. 23 In the instant case, the records show that the
Sandiganbayan, as the trier of facts, considered the entirety of the evidence against appellant and the latter's conviction was not
based solely on the genuineness of the signatures testified to by the NBI expert. The elements of the offense charged having
been proven beyond reasonable doubt, petitioner's conviction must therefore stand.
WHEREFORE, the instant petition is DENIED, and the assailed Decision and Resolution of the Sandiganbayan in Criminal Case
No. 18273 are AFFIRMED. Costs against petitioner.
SO ORDERED.
SUPREME COURT
Manila
FIRST DIVISION
A.M. No. MTJ-981147 July 2, 1998
JESUS S. CONDUCTO, complainant,
vs.
JUDGE ILUMINADO C. MONZON, respondent.
RESOLUTION
DAVIDE, JR., J.:
In a sworn letter-complaint dated 14 October 1996, 1 complainant charged respondent Judge Iluminado C. Monzon of the
Municipal Trial Court in Cities, San Pablo City, with ignorance of law, in that he deliberately refused to suspend a
barangay chairman who was charged before his court with the crime of unlawful appointment under Article 244 of the
Revised Penal Code.
The factual antecedents recited in the letter-complaint are not controverted.
On 30 August 1993, complainant filed a complaint with the Sangguniang Panlungsod of San Pablo City against one
Benjamin Maghirang, the barangay chairman of Barangay III-E of San Pablo City, for abuse of authority, serious
irregularity and violation of law in that, among other things, said respondent Maghirang appointed his sister-in-law,
Mrs. Florian Maghirang, to the position of barangay secretary on 17 May 1989 in violation of Section 394 of the Local
Government Code. At the same time, complainant filed a complaint for violation of Article 244 of the Revised Penal
Code with the Office of the City Prosecutor against Maghirang, which was, however, dismissed 2 on 30 September 1993
on the ground that Maghirang's sister-in-law was appointed before the effectivity of the Local Government Code of
1991, which prohibits a punong barangay from appointing a relative within the fourth civil degree of consanguinity or
affinity as barangay secretary. The order of dismissal was submitted to the Office of the Deputy Ombudsrnan for
Luzon.
On 22 October 1993, complainant obtained Opinion No. 246, s. 1993 3 from Director Jacob Montesa of the Department
of Interior and Local Government, which declared that the appointment issued by Maghirang to his sister-in-law
violated paragraph (2), Section 95 of B.P. Blg. 337, the Local Government Code prior to the Local Government Code of
1991.
In its Revised Resolution of 29 November 1993, 4 the Office of the Deputy Ombudsman for Luzon dismissed the case,
but ordered Maghirang to replace his sister-in-law as barangay secretary.
On 20 December 1993, complainant moved that the Office of the Deputy Ombudsman for Luzon reconsider 5 the order
of 29 November 1993, in light of Opinion No. 246, s. 1993 of Director Montesa.
Acting on the motion, Francisco Samala, Graft Investigation Officer II of the Office of the Deputy Ombudsman for
Luzon, issued an order 6 on 8 February 1994 granting the motion for reconsideration and recommending the filing of an
information for unlawful appointment (Article 244 of the Revised Penal Code) against Maghirang. The recommendation
was duly approved by Manuel C. Domingo, Deputy Ombudsman for Luzon.
In a 3rd indorsement dated 4 March 1994, 7 the Deputy Ombudsman for Luzon transmitted the record of the case to the
Office of the City Prosecutor of San Pablo City and instructed the latter to file the corresponding information against
Maghirang with the proper court and to prosecute the case. The information for violation of Article 244 of the Revised
Penal Code was forthwith filed with the Municipal Trial Court in Cities in San Pablo City and docketed as Criminal Case
No. 26240. On 11 April 1994, the presiding judge, respondent herein, issued a warrant for the arrest of Maghirang, with
a recommendation of a P200.00 bond for his provisional liberty.
With prior leave from the Office of the Deputy Ombudsman for Luzon, on 4 May 1995, the City Prosecutor filed, in
Criminal Case No. 26240, a motion for the suspension 8 of accused Maghirang pursuant to Section 13 of R.A. No. 3019,
as amended, which reads, in part:
Sec. 13. Any incumbent public officer against whom any criminal prosecution under a valid information
under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud
upon government or public funds or property whether as a single or as complex offense and in
whatever stage of execution and mode of participation, is pending in Court, shall be suspended from
office.
In his Order of 30 June 1995, 9 respondent judge denied the motion for suspension on the ground that:
[T]he alleged offense of UNLAWFUL APPOINTMENT under Article 244 of the Revised Penal Code was
committed on May 17, 1989, during [Maghirang's] terms (sic) of office from 1989 to 1994 and said
accused was again re-elected as Barangay Chairman during the last Barangay Election of May 9, 1994,
hence, offenses committed during previous term is (sic) not a cause for removal (Lizarez vs.
Hechanova, et al., G.R. No. L-22059, May 17, 1965); an order of suspension from office relating to a
given term may not be the basis of contempt with respect to ones (sic) assumption of the same office
under a new term (Oliveros vs. Villaluz, G.R. No. L-34636, May 30, 1971) and, the Court should never
remove a public officer for acts done prior to his present term of office. To do otherwise would
deprieve (sic) the people of their right to elect their officer. When the people have elected a man to
office, it must be assumed that they did this with knowledge of his life and character, and that they
disregarded or forgave his fault or mis conduct (sic), if he had been guilty if any. (Aguinaldo vs.
Santos, et al., G.R. No. 94115, August 21, 1992).
The prosecution moved for reconsideration 10 of the order, alleging that the court had confused removal as a penalty in
administrative cases and the "temporary removal from office (or suspension) as a means of preventing the public
official, while the criminal case against him is pending, from exerting undue influence, intimidate (sic) witnesses which
may affect the outcome of the case; the former is a penalty or sanction whereas the latter is a mere procedural
remedy." Accordingly, "while a re-elected public official cannot be administratively punished by removing him from
office for offenses committed during his previous term, . . . said public official can be temporarily removed to prevent
him from wielding undue influence which will definitely be a hindrance for justice to take its natural course." The
prosecution then enumerated the cases decided by this Court reiterating the rule that what a re-election of a public
official obliterates are only administrative, not criminal, liabilities, incurred during previous terms. 11
In his order of 3 August 1995, 12 respondent denied the motion for reconsideration, thus:
There is no dispute that the suspension sought by the prosecution is premised upon the act charged
allegedly committed during the accused [sic] previous term as Barangay Chairman of Brgy. III-E. San
Pablo City, who was subsequently re-elected as Barangay Chairman again during the last Barangay
Election of May 9, 1994. Certainly, had not the accused been re-elected the prosecution will not file the
instant motion to suspend him as there is no legal basis or the issue has become academic.
The instant case run [sic] parallel with the case of Lizares vs. Hechanova, et al., L-22059, May 17, 1966,
17 SCRA 58, wherein the Supreme Court subscribed to the rule denying the right to remove from office
because of misconduct during a prior term.
It is opined by the Court that preventive suspension is applicable only if there is [sic] administrative
case filed against a local official who is at the same time criminally charged in Court. At present, the
records of the Court shows [sic] that there is no pending administrative case existing or filed against
the accused.
It was held in the concluding paragraph of the decision by the Honorable Supreme Court in Lizares vs.
Hechanova, et al., that "Since petitioner, having been duly re-elected, is no longer amenable to
administrative sanctions for any acts committed during his former tenure, the determination whether
the respondent validly acted in imposing upon him one month's suspension for act [sic] done during
his previous term as mayor is now merely of theoretical interest.
Complainant then moved that respondent inhibit himself from Criminal Case No. 26240. In his order of 21 September
1995, 13 respondent voluntarily inhibited himself. The case was assigned to Judge Adelardo S. Escoses per order of
Executive Judge Bienvenido V. Reyes of the Regional Trial Court of San Pablo City.
On 15 October 1996, complainant filed his sworn letter-complaint with the Office of the Court Administrator.
In his comment dated 14 February 1997, filed in compliance with the resolution of this Court of 27 January 1997,
respondent asserted that he had been "continuously keeping abreast of legal and jurisprudential development [sic] in
the law" since he passed the 1955 Bar Examinations; and that he issued the two challenged orders "only after due
appreciation of prevailing jurisprudence on the matter," citing authorities in support thereof. He thus prayed for
dismissal of this case, arguing that to warrant a finding of ignorance of law and abuse of authority, the error must be
"so gross and patent as to produce an inference of ignorance or bad faith or that the judge knowingly rendered an
unjust decision." 14 He emphasized, likewise, that the error had to be "so grave and on so fundamental a point as to
warrant condemnation of the judge as patently ignorant or negligent;" 15 "otherwise, to hold a judge administratively
accountable for every erroneous ruling or decision he renders, assuming that he has erred, would be nothing short of
harassment and that would be intolerable." 16
Respondent further alleged that he earned complainant's ire after denying the latter's Motion for the Suspension of
Barangay Chairman Maghirang, which was filed only after Maghirang was re-elected in 1994; and that complainant
made inconsistent claims, concretely, while in his letter of 4 September 1995 requesting respondent to inhibit from the
case, complainant declared that he believed in respondent's integrity, competence and dignity, after he denied the
request, complainant branded respondent as a "judge of poor caliber and understanding of the law, very incompetent
and has no place in Court of Justice."
Finally, respondent Judge avowed that he would not dare soil his judicial robe at this time, for he had only three (3)
years and nine (9) months more before reaching the compulsory age of retirement of seventy (70); and that for the last
25 years as municipal judge in the seven (7) towns of Laguna and as presiding judge of the MTCC, San Pablo City, he
had maintained his integrity.
In compliance with the Court's resolution of 9 March 1998, the parties, by way of separate letters, informed the Court
that they agreed to have this case decided on the basis of the pleadings already filed, with respondent explicitly
specifying that only the complaint and the comment thereon be considered.
The Office of the Court Administrator (OCA) recommends that this Court hold respondent liable for ignorance of the
law and that he be reprimanded with a warning that a repetition of the same or similar acts in the future shall be dealt
with more severely. In support thereof, the OCA makes the following findings and conclusions:
The claim of respondent Judge that a local official who is criminally charged can be preventively
suspended only if there is an administrative case filed against him is without basis. Section 13 of RA
3019 (Anti-Graft and Corrupt Practices Act) states that:
Suspension and loss of benefits — Any incumbent public officer against whom any
criminal prosecution under a valid information under this Act or under Title 7, Book II of
the Revised Penal Code or for any offense involving fraud upon government or public
funds or property whether as a simple or as a complex offense and in whatever stage
of execution and mode of participation, is pending in court, shall be suspended from
office.
It is well settled that Section 13 of RA 3019 makes it mandatory for the Sandiganbayan (or the Court) to
suspend any public officer against whom a valid information charging violation of this law, Book II,
Title 7 of the RPC, or any offense involving fraud upon government or public funds or property is filed
in court. The court trying a case has neither discretion nor duty to determine whether preventive
suspension is required to prevent the accused from using his office to intimidate witnesses or frustrate
his prosecution or continue committing malfeasance in office. All that is required is for the court to
make a finding that the accused stands charged under a valid information for any of the above-
described crimes for the purpose of granting or denying the sought for suspension. (Bolastig vs.
Sandiganbayan, G.R. No. 110503 [August 4, 1994], 235 SCRA 103).
In the same case, the Court held that "as applied to criminal prosecutions under RA 3019, preventive
suspension will last for less than ninety (90) days only if the case is decided within that period;
otherwise, it will continue for ninety (90) days."
Barangay Chairman Benjamin Maghirang was charged with Unlawful Appointment, punishable under
Article 244, Title 7, Book II of the Revised Penal Code. Therefore, it was mandatory on Judge Monzon's
part, considering the Motion filed, to order the suspension of Maghirang for a maximum period of
ninety (90) days. This, he failed and refused to do.
Judge Monzon's contention denying complainant's Motion for Suspension because "offenses
committed during the previous term (is) not a cause for removal during the present term" is untenable.
In the case of Rodolfo E. Aguinaldo vs. Hen. Luis Santos and Melvin Vargas, 212 SCRA 768, the Court
held that "the rule is that a public official cannot be removed for administrative misconduct committed
during a prior term since his re-election to office operates as a condonation of the officer's previous
misconduct committed during a prior term, to the extent of cutting off the right to remove him
therefor. The foregoing rule, however, finds no application to criminal cases . . . (Emphasis supplied)
Likewise, it was specifically declared in the case of Ingco vs. Sanchez, G.R. No. L-23220, 18 December
1967, 21 SCRA 1292, that "The ruling, therefore, that "when the people have elected a man to office it
must be assumed that they did this with knowledge of his life and character and that they disregarded
or forgave his faults or misconduct if he had been guilty of any" refers only to an action for removal
from office and does not apply to a criminal case." (Emphasis ours)
Clearly, even if the alleged unlawful appointment was committed during Maghirang's first term as
barangay chairman and the Motion for his suspension was only filed in 1995 during his second term,
his re-election is not a bar to his suspension as the suspension sought for is in connection with
criminal case.
Respondent's denial of complainant's Motion for Reconsideration left the complainant with no other
judicial remedy. Since a case for Unlawful Appointment is covered by Summary Procedure,
complainant is prohibited from filing a petition for certiorari, mandamus or prohibition involving an
interlocutory order issued by the court. Neither can he file an appeal from the court's adverse final
judgment, incorporating in his appeal the grounds assailing the interlocutory orders, as this will put the
accused in double jeopardy.
All things considered, while concededly, respondent Judge manifested his ignorance of the law in
denying complainant's Motion for Suspension of Brgy. Chairman Maghirang, there was nothing shown
however to indicate that he acted in bad faith or with malice. Be that as it may, it would also do well to
note that good faith and lack of malicious intent cannot completely free respondent from liability.
This Court, in the case of Libarios and Dabalos, 199 SCRA 48, ruled:
In the absence of fraud, dishonesty or corruption, the acts of a judge done in his
judicial capacity are not subject to disciplinary action, even though such acts may be
erroneous. But, while judges should not be disciplined for inefficiency on account
merely of occasional mistakes or errors of judgment, yet, it is highly imperative that
they should be conversant with basic principles.
A judge owes it to the public and the administration of justice to know the law he is
supposed to apply to a given controversy. He is called upon to exhibit more than a
cursory acquaintance with the statutes and procedural rules. There will be faith in the
administration of justice only if there be a belief on the part of litigants that the
occupants of the bench cannot justly be accused of a deficiency in their grasp of legal
principles.
The findings and conclusions of the Office of the Court Administrator are in order. However, the penalty
recommended, i.e., reprimand, is too light, in view of the fact that despite his claim that he has been "continuously
keeping abreast of legal and jurisprudential development [sic] in law" ever since he passed the Bar Examinations in
1995, respondent, wittingly or otherwise, failed to recall that as early as 18 December 1967 in Ingco v. Sanchez, 17 this
Court explicitly ruled that the re-election of a public official extinguishes only the administrative, but not the criminal,
liability incurred by him during his previous term of office, thus:
The ruling, therefore, that — "when the people have elected a man to his office it must be assumed that
they did this with knowledge of his life and character and that they disregarded or forgave his faults or
misconduct if he had been guilty of any" — refers only to an action for removal from office and does
not apply to a criminal case, because a crime is a public wrong more atrocious in character than mere
misfeasance or malfeasance committed by a public officer in the discharge of his duties, and is
injurious not only to a person or group of persons but to the State as a whole. This must be the reason
why Article 89 of the Revised Penal Code, which enumerates the grounds for extinction of criminal
liability, does not include reelection to office as one of them, at least insofar as a public officer is
concerned. Also, under the Constitution, it is only the President who may grant the pardon of a criminal
offense.
In Ingco, this Court did not yield to petitioner's insistence that he was benefited by the ruling in Pascual v. Provincial
Board of Nueva Ecija 18 that a public officer should never be removed for acts done prior to his present term of office,
as follows:
There is a whale of a difference between the two cases. The basis of the investigation which has been
commenced here, and which is sought to be restrained, is a criminal accusation the object of which is
to cause the indictment and punishment of petitioner-appellant as a private citizen; whereas in the
cases cited, the subject of the investigation was an administrative charge against the officers therein
involved and its object was merely to cause his suspension or removal from public office. While the
criminal cases involves the character of the mayor as a private citizen and the People of the Philippines
as a community is a party to the case, an administrative case involves only his actuations as a public
officer as [they] affect the populace of the municipality where he serves. 19
Then on 20 June 1969, in Luciano v. The Provincial Governor, et al., 20 this Court likewise categorically declared that
criminal liabilities incurred by an elective public official during his previous term of office were not extinguished by his
re-election, and that Pascual v. Provincial Governor and Lizares v. Hechanova referred only to administrative liabilities
committed during the previous term of an elective official, thus:
1. The first problem we are to grapple with is the legal effect of the reelection of respondent municipal
officials. Said respondents would want to impress upon us the fact that in the last general elections of
November 14, 1967 the Makati electorate reelected all of them, except that Vice-Mayor Teotimo
Gealogo, a councilor prior thereto, was elevated to vice-mayor. These respondents contend that their
reelection erected a bar to their removal from office for misconduct committed prior to November 14,
1967. It is to be recalled that the acts averred in the criminal information in Criminal Case 18821 and for
which they were convicted allegedly occurred on or about July 26, 1967, or prior to the 1967 elections.
They ground their position on Pascual vs. Provincial Board of Nueva Ecija, 106 Phil. 466, and Lizares
vs. Hechanova, 17 SCRA 58.
A circumspect view leaves us unconvinced of the soundness of respondents' position. The two cases
relied upon have laid down the precept that a reelected public officer is no longer amenable
to administrative sanctions for acts committed during his former tenure. But the present case rests on
an entirely different factual and legal setting. We are not here confronted with administrative charges to
which the two cited cases refer. Here involved is a criminal prosecution under a special statute, the
Anti-Graft and Corrupt Practices Act (Republic Act 3019).
Then again, on 30 May 1974, in Oliveros v. Villaluz, 21 this Court held:
The first question presented for determination is whether a criminal offense for violation of Republic
Act 3019 committed by an elective officer during one term may be the basis of his suspension in a
subsequent term in the event of his reelection to office.
Petitioner concedes that "the power and authority of respondent judge to continue trying the criminal
case against petitioner may not in any way be affected by the fact of petitioner's reelection," but
contends that "said respondent's power to preventively suspend petitioner under section 13 of
Republic Act 3019 became inefficacious upon petitioner's reelection" arguing that the power of the
courts cannot be placed over that of sovereign and supreme people who ordained his return to office.
Petitioner's reliance on the loose language used in Pascual vs. Provincial Board of Nueva Ecija that
"each term is separate from other terms and that the reelection to office operates as a condonation of
the officer's previous misconduct to the extent of cutting off the right to remove him therefor" is
misplaced.
The Court has in subsequent cases made it clear that the Pascual ruling (which dealt with
administrative liability) applies exclusively to administrative and not to criminal liability and sanctions.
Thus, in Ingco vs. Sanchez the court ruled that the reelection of a public officer for a new term
does not in any manner wipe out the criminal liability incurred by him in a previous term.
In Luciano vs. Provincial Governor the Court stressed that the cases of Pascual and Lizares are
authority for the precept that "a reelected public officer is no longer amenable
to administrative sanctions for acts committed during his former tenure" but that as
to criminal prosecutions, particularly, for violations of the Anti-Graft and Corrupt Practices Act, as in
the case at bar, the same are not barred by reelection of the public officer, since, inter alia, one of the
penalties attached to the offense is perpetual disqualification from public office and it "is patently
offensive to the objectives and the letter of the Anti-Graft and Corrupt Practice Act . . . that an official
may amass wealth thru graft and corrupt practices and thereafter use the same to purchase reelection
and thereby launder his evil acts."
Punishment for a crime is a vindication for an offense against the State and the body politic. The small
segment of the national electorate that constitutes the electorate of the municipality of Antipolo has no
power to condone a crime against the public justice of the State and the entire body politic. Reelection
to public office is not provided for in Article 89 of the Revised Penal Code as a mode of extinguishing
criminal liability incurred by a public officer prior to his reelection. On the contrary, Article 9 of the Anti-
Graft Act imposes as one of the penalties in case of conviction perpetual disqualification from public
office and Article 30 of the Revised Penal Code declares that such penalty of perpetual disqualification
entails "the deprivation of the public offices and employments which the offender may have held, even
if conferred by popular election."
It is manifest then, that such condonation of an officer's fault or misconduct during a previous expired
term by virtue of his reelection to office for a new term can be deemed to apply only to
his administrative and not to his criminal guilt. As succinctly stated in then Solicitor General (now
Associate Justice) Felix Q. Antonio's memorandum for the State, "to hold that petitioner's reelection
erased his criminal liability would in effect transfer the determination of the criminal culpability of an
erring official from the court to which it was lodged by law into the changing and transient whim and
caprice of the electorate. This cannot be so, for while his constituents may condone the misdeed of a
corrupt official by returning him back to office, a criminal action initiated against the latter can only be
heard and tried by a court of justice, his nefarious act having been committed against the very State
whose laws he had sworn to faithfully obey and uphold. A contrary rule would erode the very system
upon which our government is based, which is one of laws and not of men."
Finally, on 21 August 1992, in Aguinaldo v. Santos, 22 this Court stated:
Clearly then, the rule is that a public official cannot be removed from administrative misconduct
committed during a prior term, since his re-election to office operates as a condonation of the officer's
previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule,
however, finds no application to criminal cases pending against petitioner for acts he may have
committed during the failed coup.
Thus far, no ruling to the contrary has even rippled the doctrine enunciated in the above-mentioned cases. If
respondent has truly been continuously keeping abreast of legal and jurisprudential development [sic] in the law," it
was impossible for him to have missed or misread these cases. What detracts from his claim of assiduity is the fact
that he even cited the cases of Oliveros v. Villaluz and Aguinaldo v. Santos in support of his 30 June 1995 order. What
is then evident is that respondent either did not thoroughly read these cases or that he simply miscomprehended them.
The latter, of course, would only manifest either incompetence, since both cases were written in plain and simple
language thereby foreclosing any possibility of misunderstanding or confusion; or deliberate disregard of a long
settled doctrine pronounced by this Court.
While diligence in keeping up-to-date with the decisions of this Court is a commendable virtue of judges — and, of
course, members of the Bar — comprehending the decisions is a different matter, for it is in that area where one's
competence may then be put to the test and proven. Thus, it has been said that a judge is called upon to exhibit more
than just a cursory acquaintance with statutes and procedural rules; it is imperative that he be conversant with basic
legal principles and aware of well-settled and authoritative doctrines. 23 He should strive for excellence, exceeded only
by his passion for truth, to the end that he be the personification of justice and the Rule of Law. 24
Needless to state, respondent was, in this instance, wanting in the desired level of mastery of a revered doctrine on a
simple issue.
On the other hand, if respondent judge deliberately disregarded the doctrine laid down in Ingco v. Sanchez and
reiterated in the succeeding cases of Luciano v. Provincial Governor, Oliveros v. Villaluz and Aguinaldo v. Santos, it
may then be said that he simply wished to enjoy the privilege of overruling this Court's doctrinal pronouncements. On
this point, and as a reminder to all judges, it is apropos to quote what this Court said sixty-one years ago in People v.
Vera: 25
As already observed by this Court in Shioji vs. Harvey [1922], 43 Phil., 333, 337), and reiterated in
subsequent cases "if each and every Court of First Instance could enjoy the privilege of overruling
decisions of the Supreme Court, there would be no end to litigation, and judicial chaos would result." A
becoming modesty of inferior courts demands conscious realization of the position that they occupy in
the interrelation and operation of the integrated judicial system of the nation.
Likewise, in Luzon Stevedoring Corp. v. Court of Appeals: 26
The spirit and initiative and independence on the part of men of the robe may at times be
commendable, but certainly not when this Court, not once but at least four times, had indicated what
the rule should be. We had spoken clearly and unequivocally. There was no ambiguity in what we said.
Our meaning was clear and unmistakable. We did take pains to explain why it must be thus. We were
within our power in doing so. It would not be too much to expect, then, that tribunals in the lower rungs
of the judiciary would at the very least, take notice and yield deference. Justice Laurel had indicated in
terms too clear for misinterpretation what is expected of them. Thus: "A becoming modesty of inferior
court[s] demands conscious realization of the position that they occupy in the interrelation and
operation of the integrated judicial system of the nation." 27 In the constitutional sense, respondent
Court is not excluded from such a category. The grave abuse of discretion is thus manifest.
In Caram Resources Corp v. Contreras, 28 this Court affirmed that by tradition and in our system of judicial
administration, this Court has the last word on what the law is, and that its decisions applying or interpreting the
Constitution and laws form part of this country's legal system. 29 All other courts should then be guided by the
decisions of this Court. To judges who find it difficult to do so, Vivo v. Cloribel 30 warned:
Now, if a Judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that the
application of a doctrine promulgated by this Superiority is against his way of reasoning, or against his
conscience, he may state his opinion on the matter, but rather than disposing of the case in
accordance with his personal views he must first think that it is his duty to apply the law as interpreted
by the Highest Court of the Land, and that any deviation from the principle laid down by the latter
would unavoidably cause, as a sequel, unnecessary inconveniences, delays and expenses to the
litigants. And if despite of what is here said, a Judge, still believes that he cannot follow Our rulings,
then he has no other alternative than to place himself in the position that he could properly avoid the
duty of having to render judgment on the case concerned (Art. 9, C.C.), and he has only one legal way
to do that.
Finally, the last sentence of Canon 18 of the Canons of Judicial Ethics directs a judge to administer his office
with due regard to the integrity of the system of the law itself, remembering that he is not a depository of
arbitrary power, but a judge under the sanction of law.
That having been said, we cannot but conclude that the recommended penalty of reprimand is not commensurate with
the misdeed committed. A fine of P5,000.00, with a warning that a commission of similar acts in the future shall be dealt
with more severely is, at the very least, appropriate, considering respondent is due for compulsory retirement on 29
November 2000 and that this is his first offense.
WHEREFORE, for incompetence as a result of ignorance of a settled doctrine interpreting a law, or deliberate disregard
of such doctrine in violation of Canon 18 of the Canons of Judicial Ethics, respondent Judge Iluminado C. Monzon is
hereby FINED in the amount of Five Thousand Pesos (P5,000.00) and warned that the commission of similar acts in the
future shall be dealt with more severely.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 97149 March 31, 1992
FIDENCIO Y. BEJA, SR., petitioner,

vs.
COURT OF APPEALS, HONORABLE REINERIO O. REYES, in his capacity as Secretary of the Department of
Transportation and Communications; COMMODORE ROGELIO A. DAYAN, in his capacity as General Manager of the
Philippine Ports Authority; DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, ADMINISTRATIVE ACTION
BOARD; and JUSTICE ONOFRE A. VILLALUZ, in his capacity as Chairman of the Administrative Action Board,
DOTC, respondents.
ROMERO, J.:
The instant petition for certiorari questions the jurisdiction of the Secretary of the Department of Transportation and
Communications (DOTC) and/or its Administrative Action Board (AAB) over administrative cases involving personnel below the
rank of Assistant General Manager of the Philippine Ports Authority (PPA), an agency attached to the said Department.
Petitioner Fidencio Y. Beja, Sr. 1 was first employed by the PPA as arrastre supervisor in 1975. He became Assistant Port
Operations Officer in 1976 and Port Operations Officer in 1977. In February 1988, as a result of the reorganization of the PPA,
he was appointed Terminal Supervisor.
On October 21, 1988, the PPA General Manager, Rogelio A. Dayan, filed Administrative Case No. 11-04-88 against petitioner
Beja and Hernando G. Villaluz for grave dishonesty, grave misconduct, willful violation of reasonable office rules and regulations
and conduct prejudicial to the best interest of the service. Beja and Villaluz allegedly erroneously assessed storage fees
resulting in the loss of P38,150.77 on the part of the PPA. Consequently, they were preventively suspended for the charges.
After a preliminary investigation conducted by the district attorney for Region X, Administrative Case No. 11-04-88 was
"considered closed for lack of merit."
On December 13, 1988, another charge sheet, docketed as Administrative Case No. 12-01-88, was filed against Beja by the
PPA General Manager also for dishonesty, grave misconduct, violation of reasonable office rules and regulations, conduct
prejudicial to the best interest of the service and for being notoriously undesirable. The charge consisted of six (6) different
specifications of administrative offenses including fraud against the PPA in the total amount of P218,000.00. Beja was also
placed under preventive suspension pursuant to Sec. 41 of P.D. No. 807.
The case was redocketed as Administrative Case No. PPA-AAB-1-049-89 and thereafter, the PPA general manager indorsed it
to the AAB for "appropriate action." At the scheduled hearing, Beja asked for continuance on the ground that he needed time to
study the charges against him. The AAB proceeded to hear the case and gave Beja an opportunity to present evidence.
However, on February 20, 1989, Beja filed a petition for certiorari with preliminary injunction before the Regional Trial Court of
Misamis Oriental. 2 Two days later, he filed with the AAB a manifestation and motion to suspend the hearing of Administrative
Case No. PPA-AAB-1-049-89 on account of the pendency of the certiorari proceeding before the court. AAB denied the motion
and continued with the hearing of the administrative case.
Thereafter, Beja moved for the dismissal of the certiorari case below and proceeded to file before this Court a petition
for certiorari with preliminary injunction and/or temporary restraining order. The case was docketed as G.R. No. 87352 captioned
"Fidencio Y. Beja v. Hon. Reinerio 0. Reyes, etc., et al." In the en banc resolution of March 30, 1989, this Court referred the case
to the Court of Appeals for "appropriate action." 3 G.R. No. 87352 was docketed in the Court of Appeals as CA-G.R. SP No.
17270.
Meanwhile, a decision was rendered by the AAB in Administrative Case No. PPA-AAB-049-89. Its dispositive portion reads:
WHEREFORE, judgment is hereby rendered, adjudging the following, namely:
a) That respondents Geronimo Beja, Jr. and Hernando Villaluz are exonerated from the charge against them;
b) That respondent Fidencio Y. Beja be dismissed from the service;
c) That his leave credits and retirement benefits are declared forfeited;
d) That he be disqualified from re-employment in the government service;
e) That his eligibility is recommended to be cancelled.
Pasig, Metro Manila, February 28, 1989.

On December 10, 1990, after appropriate proceedings, the Court of Appeals also rendered a decision 4 in CA-G.R. SP No.
17270 dismissing the petition for certiorari for lack of merit. Hence, Beja elevated the case back to this Court through an "appeal
by certiorari with preliminary injunction and/or temporary restraining order."
We find the pleadings filed in this case to be sufficient bases for arriving at a decision and hence, the filing of memoranda has
been dispensed with.
In his petition, Beja assails the Court of Appeals for having "decided questions of substance in a way probably not in accord with
law or with the applicable decisions" of this Court. 5 Specifically, Beja contends that the Court of Appeals failed to declare that:
(a) he was denied due process; (b) the PPA general manager has no power to issue a preventive suspension order without the
necessary approval of the PPA board of directors; (c) the PPA general manager has no power to refer the administrative case
filed against him to the DOTC-AAB, and (d) the DOTC Secretary, the Chairman of the DOTC-AAB and DOTC-AAB itself as an
adjudicatory body, have no jurisdiction to try the administrative case against him. Simply put, Beja challenges the legality of the
preventive suspension and the jurisdiction of the DOTC Secretary and/or the AAB to initiate and hear administrative cases
against PPA personnel below the rank of Assistant General Manager.
Petitioner anchors his contention that the PPA general manager cannot subject him to a preventive suspension on the following
provision of Sec. 8, Art. V of Presidential Decree No. 857 reorganizing the PPA:
(d) the General Manager shall, subject to the approval of the Board, appoint and remove personnel below the
rank of Assistant General Manager. (Emphasis supplied.)
Petitioner contends that under this provision, the PPA Board of Directors and not the PPA General Manager is the "proper
disciplining authority. 6
As correctly observed by the Solicitor General, the petitioner erroneously equates "preventive suspension" as a remedial
measure with "suspension" as a penalty for administrative dereliction. The imposition of preventive suspension on a government
employee charged with an administrative offense is subject to the following provision of the Civil Service Law, P.D. No. 807:
Sec. 41. Preventive Suspension. — The proper disciplining authority may preventively suspend any
subordinate officer or employee under his authority pending an investigation, if the charge against such officer
or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if
there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the
service.
Imposed during the pendency of an administrative investigation, preventive suspension is not a penalty in itself. It is merely a
measure of precaution so that the employee who is charged may be separated, for obvious reasons, from the scene of his
alleged misfeasance while the same is being investigated. 7 Thus, preventive suspension is distinct from the administrative
penalty of removal from office such as the one mentioned in Sec. 8(d) of P.D. No 857. While the former may be imposed on a
respondent during the investigation of the charges against him, the latter is the penalty which may only be meted upon him at
the termination of the investigation or the final disposition of the case.
The PPA general manager is the disciplining authority who may, by himself and without the approval of the PPA Board of
Directors, subject a respondent in an administrative case to preventive suspension. His disciplinary powers are sanctioned, not
only by Sec. 8 of P.D. No. 857 aforequoted, but also by Sec. 37 of P.D. No. 807 granting heads of agencies the "jurisdiction to
investigate and decide matters involving disciplinary actions against officers and employees" in the PPA.
Parenthetically, the period of preventive suspension is limited. It may be lifted even if the disciplining authority has not finally
decided the administrative case provided the ninety-day period from the effectivity of the preventive suspension has been
exhausted. The employee concerned may then be reinstated. 8 However, the said ninety-day period may be interrupted. Section
42 of P.D. No. 807 also mandates that any fault, negligence or petition of a suspended employee may not be considered in the
computation of the said period. Thus, when a suspended employee obtains from a court of justice a restraining order or a
preliminary injunction inhibiting proceedings in an administrative case, the lifespan of such court order should be excluded in the
reckoning of the permissible period of the preventive suspension. 9
With respect to the issue of whether or not the DOTC Secretary and/or the AAB may initiate and hear administrative cases
against PPA Personnel below the rank of Assistant General Manager, the Court qualifiedly rules in favor of petitioner.
The PPA was created through P.D. No. 505 dated July 11, 1974. Under that Law, the corporate powers of the PPA were vested
in a governing Board of Directors known as the Philippine Port Authority Council. Sec. 5(i) of the same decree gave the Council
the power "to appoint, discipline and remove, and determine the composition of the technical staff of the Authority and other
personnel."
On December 23, 1975, P.D. No. 505 was substituted by P.D. No. 857, See. 4(a) thereof created the Philippine Ports Authority
which would be "attached" to the then Department of Public Works, Transportation and Communication. When Executive Order
No. 125 dated January 30, 1987 reorganizing the Ministry of Transportation and Communications was issued, the PPA retained
its "attached" status. 10 Even Executive Order No. 292 or the Administrative Code of 1987 classified the PPA as an agency
"attached" to the Department of Transportation and Communications (DOTC). Sec. 24 of Book IV, Title XV, Chapter 6 of the
same Code provides that the agencies attached to the DOTC "shall continue to operate and function in accordance with the
respective charters or laws creating them, except when they conflict with this Code."
Attachment of an agency to a Department is one of the three administrative relationships mentioned in Book IV, Chapter 7 of the
Administrative Code of 1987, the other two being supervision and control and administrative supervision. "Attachment" is defined
in Sec. 38 thereof as follows:
(3) Attachment. — (a) This refers to the lateral relationship between the Department or its equivalent and the
attached agency or corporation for purposes of policy and program coordination. The coordination shall be
accomplished by having the department represented in the governing board of the attached agency or
corporation, either as chairman or as a member, with or without voting rights, if this is permitted by the charter;
having the attached corporation or agency comply with a system of periodic reporting which shall reflect the
progress of programs and projects; and having the department or its equivalent provide general policies
through its representative in the board, which shall serve as the framework for the internal policies of the
attached corporation or agency;
(b) Matters of day-to-day administration or all those pertaining to internal operations shall he left to the
discretion or judgment of the executive officer of the agency or corporation. In the event that the Secretary and
the head of the board or the attached agency or corporation strongly disagree on the interpretation and
application of policies, and the Secretary is unable to resolve the disagreement, he shall bring the matter to the
President for resolution and direction;
(c) Government-owned or controlled corporations attached to a department shall submit to the Secretary
concerned their audited financial statements within sixty (60) days after the close of the fiscal year; and
(d) Pending submission of the required financial statements, the corporation shall continue to operate on the
basis of the preceding year's budget until the financial statements shall have been submitted. Should any
government-owned or controlled corporation incur an operation deficit at the close of its fiscal year, it shall be
subject to administrative supervision of the department; and the corporation's operating and capital budget
shall be subject to the department's examination, review, modification and approval. (emphasis supplied.)
An attached agency has a larger measure of independence from the Department to which it is attached than one which is under
departmental supervision and control or administrative supervision. This is borne out by the "lateral relationship" between the
Department and the attached agency. The attachment is merely for "policy and program coordination." With respect to
administrative matters, the independence of an attached agency from Departmental control and supervision is further reinforced
by the fact that even an agency under a Department's administrative supervision is free from Departmental interference with
respect to appointments and other personnel actions "in accordance with the decentralization of personnel functions" under the
Administrative Code of 1987. 11 Moreover, the Administrative Code explicitly provides that Chapter 8 of Book IV on supervision
and control shall not apply to chartered institutions attached to a Department. 12
Hence, the inescapable conclusion is that with respect to the management of personnel, an attached agency is, to a certain
extent, free from Departmental interference and control. This is more explicitly shown by P.D. No. 857 which provides:
Sec. 8. Management and Staff. — a) The President shall, upon the recommendation of the Board, appoint the
General Manager and the Assistant General Managers.
(b) All other officials and employees of the Authority shall be selected and appointed on the basis of merit and
fitness based on a comprehensive and progressive merit system to be established by the Authority immediately
upon its organization and consistent with Civil Service rules and regulations. The recruitment, transfer,
promotion, and dismissal of all personnel of the Authority, including temporary workers, shall be governed by
such merit system.
(c) The General Manager shall, subject to the approval of the Board, determine the staffing pattern and the
number of personnel of the Authority, define their duties and responsibilities, and fix their salaries and
emoluments. For professional and technical positions, the General Manager shall recommend salaries and
emoluments that are comparable to those of similar positions in other government-owned corporations, the
provisions of existing rules and regulations on wage and position classification notwithstanding.
(d) The General Manager shall, subject to the approval by the Board, appoint and remove personnel below the
rank of Assistant General Manager.
xxx xxx xxx
(emphasis supplied.)
Although the foregoing section does not expressly provide for a mechanism for an administrative investigation of personnel, by
vesting the power to remove erring employees on the General Manager, with the approval of the PPA Board of Directors, the
law impliedly grants said officials the power to investigate its personnel below the rank of Assistant Manager who may be
charged with an administrative offense. During such investigation, the PPA General Manager, as earlier stated, may subject the
employee concerned to preventive suspension. The investigation should be conducted in accordance with the procedure set out
in Sec. 38 of P.D. No. 807. 13 Only after gathering sufficient facts may the PPA General Manager impose the proper penalty in
accordance with law. It is the latter action which requires the approval of the PPA Board of Directors. 14
From an adverse decision of the PPA General Manager and the Board of Directors, the employee concerned may elevate the
matter to the Department Head or Secretary. Otherwise, he may appeal directly to the Civil Service Commission. The permissive
recourse to the Department Secretary is sanctioned by the Civil Service Law (P.D. No. 807) under the following provisions:
Sec. 37. Disciplinary Jurisdiction. — (a) The Commission shall decide upon appeal all administrative
disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an
amount exceeding thirty days salary, demotion in rank or salary or transfer, removal or dismissal from office. A
complaint may be filed directly with the Commission by a private citizen against a government official or
employee in which case it may hear and decide the case or it may deputize any department or agency or
official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the
Commission with recommendation as to the penalty to be imposed or other action to be taken.
(b) The heads of departments, agencies and instrumentalities, provinces, cities and municipalities shall have
jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under
their jurisdiction. The decisions shall be final in case the penalty imposed is suspension for not more than thirty
days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a bureau or office
head is appealable to the Commission, the same may be initially appealed to the department and finally to the
Commission and pending appeal, the same shall be executory except when the penalty is removal, in which
case the same shall be executory only after confirmation by the department head.
xxx xxx xxx
(Emphasis supplied.)
It is, therefore, clear that the transmittal of the complaint by the PPA General Manager to the AAB was premature. The PPA
General Manager should have first conducted an investigation, made the proper recommendation for the imposable penalty and
sought its approval by the PPA Board of Directors. It was discretionary on the part of the herein petitioner to elevate the case to
the then DOTC Secretary Reyes. Only then could the AAB take jurisdiction of the case.
The AAB, which was created during the tenure of Secretary Reyes under Office Order No. 88-318 dated July 1, 1988, was
designed to act, decide and recommend to him "all cases of administrative malfeasance, irregularities, grafts and acts of
corruption in the Department." Composed of a Chairman and two (2) members, the AAB came into being pursuant to
Administrative Order No. 25 issued by the President on May 25, 1987. 15 Its special nature as a quasi-judicial administrative
body notwithstanding, the AAB is not exempt from the observance of due process in its proceedings. 16 We are not satisfied that
it did so in this case the respondents protestation that petitioner waived his right to be heard notwithstanding. It should be
observed that petitioner was precisely questioning the AAB's jurisdiction when it sought judicial recourse.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED insofar as it upholds the power of the PPA General Manager
to subject petitioner to preventive suspension and REVERSED insofar as it validates the jurisdiction of the DOTC and/or the
AAB to act on Administrative Case No. PPA-AAB-1-049-89 and rules that due process has been accorded the petitioner.
The AAB decision in said case is hereby declared NULL and VOID and the case in REMANDED to the PPA whose General
Manager shall conduct with dispatch its reinvestigation.
The preventive suspension of petitioner shall continue unless after a determination of its duration, it is found that he had served
the total of ninety (90) days in which case he shall be reinstated immediately.
SO ORDERED.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 110590 May 10, 1995
ZORAYDA AMELIA C. ALONZO, in her capacity as Chief Executive Officer of HOME DEVELOPMENT MUTUAL
FUND, petitioner,
vs.
HON. IGNACIO M. CAPULONG, Presiding Judge of the Regional Trial Court, National Capital Judicial Region, Branch
143, Makati, Metro Manila and JULIET L. FAJARDO, respondents.
MENDOZA, J.:
This is a petition for certiorari to set aside the order dated March 31, 1993 of respondent judge Ignacio Capulong, which granted
a writ of preliminary injunction enjoining petitioner from preventively suspending private respondent Juliet Fajardo as manager of
the Administrative Services Department of the Home Development Mutual Fund.
The facts of the case are as follows:
Private respondent Juliet Fajardo is, as already stated, manager of the Administrative Services Department of the Home
Development Mutual Fund, otherwise known as the Pag-ibig Fund Foundation.
On December 17, 1992 Celeste G. Al-Jawazneh, who had been supplying office uniforms and providing transportation service to
Pag-ibig Fund employees, wrote a letter to the Chief Executive Officer, herein petitioner Zorayda Alonzo, complaining against
private respondent. The letter reads:
Ms. Zorayda Amelia C. Alonzo

Chief Executive Officer
Home Development Mutual Fund
Ayala Avenue, Makati Metro Manila
Dear Ms. Alonzo:
As this year approaches its end, we take this opportunity to thank you for giving us the opportunity to serve
your good office in the area of transport services.
Our initial year of operations with Pag-ibig had indeed been blessed with the minimum of hassles. We are
encouraged by the warmth of your staff, whom we shuttle through their various daily assignments. Ironically,
the greatest disappointment does not lie in the entanglement of these activities. Rather, it is in the very
oppressive treatment that we receive from the GSD Head - Ms. Juliet Fajardo.
Ms. Fajardo has been our zealous guide in the assumption of our duties during our first months - to the point of
carrying on a cordial relationship outside official business. However, the first month saw her making a "loan",
followed by several more "loans" thereafter. By mid year and until September, we had decided to discontinue
this apparent opportunism - an action which we had bravely dared to take. As expected, the proceeding months
saw Ms. Fajardo's volatile temperament turned towards the attempt to discredit our small but honest business.
Often, we had thought of approaching the authority. Our knowledge of her apparent impulsive wrath and
distinct vulgarity instinctively taught us to seek the personal safety of our family first.
We are greatly disappointed and disturbed that Ms. Fajardo is a part of the HDMF (together with Mr. Ernie Dy
whom she has already brainwashed) panel for the bidding of next years transportation services at the DBM. In
their terms and conditions, the Reservation Clause states that HDMF-DBM-PS reserves the right to reject any
or all bids . . ." Needless to say, the mere presence of Ms. Fajardo and Mr. Dy, whom we know have already
made some derogatory remarks about us to the DBM personnel, constitutes a great bias against our bid. May
we therefore request that a replacement be made in the interest of fairness which we are all willing to abide
with.
The bidding takes place tomorrow, Ms. Alonzo. We rely on your good judgment to rectify this impropriety.
Thank you.
Sincerel
y,
(Sgd) Celeste G. Al-Jawazneh
cc: Ombudsman Manager - NEW AMANAH
COA TRANSPORT SERVICES
Acting on the complaint, petitioner directed the legal department of the Pag-ibig Fund to investigate the allegations of Al-
Jawazneh. The legal department found prima facie case against private respondent and recommended that the latter be
preventively suspended pending formal investigation of the administrative complaint.
On December 28, 1992, a formal charge was filed against private respondent for dishonesty, misconduct, disgraceful and
immoral conduct, contracting of loans of money or other property from persons with whom the office of the employee concerned
had business relations, and conduct prejudicial to the best interest of the service, for having committed the following acts:
1. For having used the influence of your office as ASD Manager to borrow from Ms. Celeste G. Al-Jawazneh, a
contractor of the HDMF for employee uniform, on the following occasions:
(a) December 12, 1991 — P5,000.00

(b) January 9, 1992 — 15,000.00
(c) Sometime between February
& March of 1992 — 20,000.00
(d) on June 3 or 4, 1992 — 5,000.00
(e) on August 18, 1992 — 20,000.00
for a total of P65,000.00 the entire amount of which remain unpaid up to this time despite
demand for payment;
2. For having used the influence of your office as ASD Manager by offering and securing the professional
services of Atty. Emil Llanes allegedly your intimate friend, in the amount of P2,000.00 permonth as retainer's
fee for and in consideration of a promise to award the HDMF transportation contract to New Amanah Transport
managed by said Celeste G. Al-Jawazneh and owned by her sister, Ms. Ma Guia San Jose;
3. The amount of P2,000.00 per month was collected by you on a monthly basis until sometime April of 1992
when a vehicular accident occurred involving one of the service vehicles of Amanah;
Private respondent was required to answer the charges and indicate whether she desired to have a formal investigation.
Meanwhile, she was placed under preventive suspension for 90 days effective December 29, 1992, pursuant to §41 of P.D. No.
807 (Civil Service Law). The formal charge and the order of preventive suspension were served on her on the same day.
Private respondent filed a petition for certiorari and prohibition in the Regional Trial Court of Makati on January 6, 1993, assailing
the order of preventive suspension issued against her. The case was docketed as Sp. Civil Action No. 93-033 and raffled to
Branch 134 of the court. Private respondent complained that the order of preventive suspension was issued without giving her
the right to be heard.
On January 7, 1992, the respondent judge issued a temporary restraining order enjoining petitioner from "executing and/or
enforcing the order of preventive suspension." This was followed by the questioned order of March 31, 1993 granting injunction.
Petitioner moved for a reconsideration of the order but respondent judge denied her motion in an order dated May 14,·1993.
Hence, this petition.
Without necessarily giving due course to the petition, we required private respondent to comment and issued a temporary
restraining order enjoining in the meantime respondent Judge Ignacio Capulong from further proceeding with Civil Case No. 93-
033.
Petitioner contends that respondent judge committed a grave abuse of his discretion in taking cognizance of the case and
stopping the preventive suspension of private respondent whom he ordered to be allowed to continue in office. She contends
that the investigation being conducted by her office was purely an administrative one and that private respondent failed to
exhaust administrative remedies by appealing to the Civil Service Commission.
We find the petition impressed with merit.
The order of preventive suspension was issued upon recommendation of the legal department of the Pag-ibig Fund which
found prima facie case against private respondent. It was issued as a preliminary step to the investigation of charges against
private respondent, pursuant to Chapter 7, Title 1, Book V of the Administrative Code of 1987, which provides in pertinent part
as follows:
§47. Disciplinary Jurisdiction. —
....
(2) The Secretaries and heads of agencies and instrumentalities, provinces, cities and municipalities shall have
jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under
their jurisdiction. . . .
§51. Preventive Suspension. — The proper disciplining authority may preventively suspend any subordinate
officer or employee under his authority pending an investigation, if the charge against such officer or employee
involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are
reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.
As Chief Executive Officer of the Home Development Mutual Fund, petitioner is the proper disciplining authority within the
meaning of §51 above. Indeed her power to order the preventive suspension of any employee under her is not denied by private
respondent. What private respondent contends is that she was suspended on the basis of an unverified letter and without first
giving her the right to be heard in her defense.
This claim is without any basis. It is true that the letter-complaint of December 17, 1992 of Celeste G. Al-Jawazneh was not
sworn to, but it was supported by her affidavit and by the sworn statements of several witnesses. Private respondent was
required to answer the charges against her and inform the Office whether she wanted a formal investigation to be held. But she
did not do so. Instead she brought the action below. She cannot therefore complain of lack of due process of law.
Private respondent argues that a hearing should have been held before she was suspended. Indeed the respondent court
restrained enforcement of the order of preventive suspension on the basis of its finding that private respondent had not been
heard before she was suspended. The respondent court found:
To controvert petitioner's claims, respondent presented a number of witnesses, the most relevant of whom is
Mr. Raul Rimando. Rimando, while claiming that he was the investigator tasked by his office to investigate the
accusations of one Celeste Al-Jawazneh against herein petitioner, admitted in his open court testimony that he
did not bother to get the side or comment of the petitioner regarding such accusations, neither did he confront
the petitioner with the alleged accusations of said Al-Jawazneh. Rimando likewise admitted that all he did in the
course of his so-called investigation was to collate the statements of Al-Jawazneh and her witnesses and
submitted the same to the Chief, Legal who thereupon recommended the placing under preventive suspension
of petitioner.
The movant/petitioner having shown that the invasion of the right to be protected is material and substantial;
that her right is clear and unmistakable; that there is an urgent necessity for the writ to prevent serious damage
(Dionisio vs. Ortiz, 204 SCRA 742); and in order to preserve the status quo until the merits of the case can be
finally determined (Avila vs. Tapucar, 201 SCRA 148).
But prior notice and hearing was not required. It is now settled that the preventive suspension of a civil service employee or
officer can be ordered even without a hearing because such suspension is not a penalty but only a preliminary step in an
administrative investigation. 1 The purpose is to prevent the accused from using his position or office to influence prospective
witnesses or tamper with the records which may be vital in the prosecution of the case against him. 2 In this case, private
respondent is manager of the Administrative Services Department. She is in a position to influence employees under her or
otherwise impede the investigation. Respondent court's order that there must be a hearing before preventive suspension may be
imposed is thus a virtual disregard of the settled rule and for this reason constitutes a grave abuse of its discretion.
WHEREFORE, the petition for certiorari is GRANTED; the writ of preliminary injunction dated April 1, 1993 is ANNULLED and
SET ASIDE; and Special Civil Action No. 93-033 of the respondent court is DISMISSED.
SO ORDERED.
EN BANC
G.R. No. 128559 October 4, 2000
THE SECRETARY OF EDUCATION, CULTURE AND SPORTS, and the CIVIL SERVICE COMMISSION, petitioners,
vs.
COURT OF APPEALS; ABENIS, ERLINDA; ACHACON, JULIAN; ACOL, SOCORRO; AFAN, MA. ANA; AGULTO,
ANGELITA; ALE, JANET; ALETA, NORMA; ALFISAR, VILMA; ALPINO, ANITA; AMAROSO, MILANDRO; AMBROSIO,
CAINA; ANAZARIO, RICARDO; ANDRES, MILAGROS; ATENDIDO, ROSITA; ANTONIO, MARCELLANA; APOSTOL,
HERMINIA; ARCEO, RAON; ARCILLA, ROSALINDA; ARGAMOZA, ROGELIA; ARRIAGA, EULALIA; ASUNCION,
CORAZON; BALATBAT, ANITA; BANAWA, MARIA; BANGALISAN, MA. PAZ; BANIGUED, ZENAIDA; BARCELON,
TEOFILO; BARTOLOME, DIVINA; BARTOLOME, PURITA; BATERNA, LUZ; BUSTILLOS, JOSE; CARANDANG, SOFIA;
CARPIO, REMEDIOS; CAYTON, LUCILA; CERDENA, ZENAIDA; CLEMENTE, PROSPERINA; CONSTANTINO, VIVIEN;
CRUZ, LUISA DELA; DABANDAN, ILUMINADA; DAVID, ENCARNACION; DAVID, VERONICA; DAYNITA, MA. BEATA;
DAYRIT, VILLAFLOR; DECELLA, ROLANDO; DEDACE, ANGELITO; DE GUZMAN, VIRGINIA; DELANTOR, TERESITA; DE
LUNA, FELICITAS; DE PEDRO, MARCELINA; DELA PAZ, ROSALINDA; DIAZ, IRENE; DIAZ, ROSARIO; DIMACALI,
ROSARIA; DIONISIO, WILLIAM; DIZON, NENITA; DOLORES, CYNTHIA; DOMANTAY, FLORENCIA; DOMINGO, DIVINA;
ECHALAS, TERESITA; ENRIQUEZ, LILIAN; ENRIQUEZ, LORNA; ERNI, LYDIA; ESPINA, ERLINDA; ESPINOZA, GLORIA;
ESPIRITU, ALFREDO; ESPIRITU, LUZ; ESPIRITU, PETRONILA; ESQUERRA, LUZVIMINDA; ESTRADA, ELSA; ESTRADA,
MARILYN; ESTRADA, VITA; EUGENIO, ELEANOR; EUGENIO, TERESA; EUSTAQUIO, ISABELITA; FARINAS, LITA;
FELIX, EMELITA; FERIA, EVA; FIEDACAN, EMILIE; FUERTES, ARSENIA; HAGOS, JOSE; HALOG, ESTRELLA; HAMID,
EDELWISSA; IBLOQUIN, ROMEO; IDOS, REBECCA; JOLOC, CHARITA; KIMPO, AMELIA; LABIRAN, MARINA; LAPUT,
ESTELA; LAYOSO, BEN; LEON, JULITA DE; LIWAG, MILAGROS; MADEJA, WILFREDO; MALILAY, SEVERA; MANUBA,
ISABELA; MARTINEZ, LIBERTAD; MEJIA, TERESITA; NATIVIDAD, EVELYN; ORDINARIO, DOLORES; ORTALIZA, JUAN;
PACLEB, VICTORIA; PAGDANGANAN, GREGORIA; PALISOC, JOSEFINA; PAREJA, ADELINA; PASTRANA, MARCOSA;
PELAYO, LUCITA; PROTON, JULITA; RAMOS, BELEN; RAMONES, CARMELITA; RED, ERLINDA; REJAN0, VIOLETA;
REVILLA, LOURDES; RIVER, ALEX; RODRIN, VIOLETA; RONGCALES, SOLEDAD; ROQUE, MILAGROS; ROXAS,
LOURDES; ROYOLA, ELINITA; RUTGER, ANGEL; SACDAL, NATIVDAD; SADANG, MARCELA; SADIE, REBECCA;
SANCHEZ, FE; SANCHEZ, OFELIA; SANCHEZ, REBECCA; SANDOGON, YOLANDA; SANTOS, ASUCENA; SANTOS,
CYNTHIA; SANTOS, JESSIEBEL; SANTOS, MA. VICTORIA; SANTOS, ROSA; SANTOS, TRINIDAD; SAN GABRIEL,
ASUNCION; SIENNA, ARTHUR; SISALIN, MA. LINDA; SISON, NORMA; SORIANO, EVA; SORIANO, MARINA; SOSA,
ARISTON; STO. DOMINGO, MARILYN; SUAN, ELVIRA; SUNSA, EDITH; SY, BERNADETTE; TABIANDO, HELEN;
TALLION, LETICIA; TAN, EVANGELINE; TAN, NENITA; TAVIOS, BLANCHE; TECSON, ESPERANZA; TEODORO,
JOSEFINA; TERRADO, TORIBIO; TOGUENO, NORMA; TOLENTINO, LETICIA; TRINIDAD, HEREDITA; UMALI, SERGIA;
VALENCIA, PRISCA; VARGAS, LOURDES; VELASCO, LOLITA; VELASCO, MILAGROS; VELASQUEZ, MARIA; VIADOR,
PENNSYLVANIA; VICENTE, SHIRLEY; VILLANUEVA, DANIEL; VILLANUEVA, NELIA; VILLAPANDO, AMPARO;
VILLARIN, ARLENE; VILLARUEL, ANECITA; VILLALBA, FRANCIA; VISTAN, AMELIA; VIVAS, EDITH; YANZA,
CORAZON; YAO, ANA MARIA; YERO, ELENA; YUMUL ERLINDA; and ZAGALA, DALISAY, respondents.
x-----------------------x
G.R. No. 130911 October 4, 2000
ABENIS, ERLINDA; ACHACON, JULIAN; ACOL, SOCORRO; AFAN, MA. ANA; AGULTO, ANGELITA; ALE, JANET;
ALETA, NORMA; ALFISAR, VILMA; ALPINO, ANITA; AMAROSO, MILANDRO; AMBROSIO, CAINA; ANAZARIO,
RICARDO; ANDRES, MILAGROS; ATENDIDO, ROSITA; ANTONIO, MARCELLANA; APOSTOL, HERMINIA; ARCEO,
RAON; ARCILLA, ROSALINDA; ARGAMOZA, ROGELIA; ARRIAGA, EULALIA; ASUNCION, CORAZON; BALATBAT,
ANITA; BANAWA, MARIA; BANGALISAN, MA. PAZ; BANIGUED, ZENAIDA; BARCELON, TEOFILO; BARTOLOME,
DIVINA; BARTOLOME, PURITA; BATERNA, LUZ; BUSTILLOS, JOSE; CARANDANG, SOFIA; CARPIO, REMEDIOS;
CAYTON, LUCILA; CERDENA, ZENAIDA; CLEMENTE, PROSPERINA; CONSTANTINO, VIVIEN; CRUZ, LUISA DELA;
DABANDAN, ILUMINADA; DAVID, ENCARNACION; DAVID, VERONICA; DAYNITA, MA. BEATA; DAYRIT, VILLAFLOR;
DECELLA, ROLANDO; DEDACE, ANGELITO; DE GUZMAN, VIRGINIA; DELANTOR, TERESITA; DE LUNA, FELICITAS;
DE PEDRO, MARCELINA; DELA PAZ, ROSALINDA; DIAZ, IRENE; DIAZ, ROSARIO; DIMACALI, ROSARIA; DIONISIO,
WILLIAM; DIZON, NENITA; DOLORES, CYNTHIA; DOMANTAY, FLORENCIA; DOMINGO, DIVINA; ECHALAS, TERESITA;
ENRIQUEZ, LILIAN; ENRIQUEZ, LORNA; ERNI, LYDIA; ESPINA, ERLINDA; ESPINOZA, GLORIA; ESPIRITU, ALFREDO;
ESPIRITU, LUZ; ESPIRITU, PETRONILA; ESQUERRA, LUZVIMINDA; ESTRADA, ELSA; ESTRADA, MARILYN; ESTRADA,
VITA; EUGENIO, ELEANOR; EUGENIO, TERESA; EUSTAQUIO, ISABELITA; FARINAS, LITA; FELIX, EMELITA; FERIA,
EVA; FIEDACAN, EMILIE; FUERTES, ARSENIA; HAGOS, JOSE; HALOG, ESTRELLA; HAMID, EDELWISSA; IBLOQUIN,
ROMEO; IDOS, REBECCA; JOLOC, CHARITA; KIMPO, AMELIA; LABIRAN, MARINA; LAPUT, ESTELA; LAYOSO, BEN;
LEON, JULITA DE; LIWAG, MILAGROS; MADEJA, WILFREDO; MALILAY, SEVERA; MANUBA, ISABELA, MARTINEZ,
LIBERTAD; MEJIA, TERESITA; NATIVIDAD, EVELYN; ORDINARIO, DOLORES; ORTALIZA, JUAN; PACLEB, VICTORIA;
PAGDANGANAN, GREGORIO; PALISOC, JOSEFINA; PAREJA, ADELINA; PASTRANA, MARCOSA; PELAYO, LUCITA;
PROTON, JULITA; RAMOS, BELEN; RAMONES, CARMELITA; RED, ERLINDA; REJAN0, VIOLETA; REVILLA, LOURDES;
RIVER, ALEX; RODRIN, VIOLETA; RONGCALES, SOLEDAD; ROQUE, MILAGROS; ROXAS, LOURDES; ROYOLA,
ELINITA; RUTGER, ANGEL; SACDAL, NATIVDAD; SADANG, MARCELA; SADIE, REBECCA; SANCHEZ, FE; SANCHEZ,
OFELIA; SANCHEZ, REBECCA; SANDOGON, YOLANDA; SANTOS, ASUCENA; SANTOS, CYNTHIA; SANTOS,
JESSIEBEL; SANTOS, MA. VICTORIA; SANTOS, ROSA; SANTOS, TRINIDAD; SAN GABRIEL, ASUNCION; SIENNA,
ARTHUR; SISALIN, MA. LINDA; SISON, NORMA; SORIANO, EVA; SORIANO, MARINA; SOSA, ARISTON; STO.
DOMINGO, MARILYN; SUAN, ELVIRA; SUNSA, EDITH; SY, BERNADETTE; TABIANDO, HELEN; TALLION, LETICIA; TAN,
EVANGELINE; TAN, NENITA; TAVIOS, BLANCHE; TECSON, ESPERANZA; TEODORO, JOSEFINA; TERRADO, TORIBIO;
TOGUENO, NORMA; TOLENTINO, LETICIA; TRINIDAD, HEREDITA; UMALI, SERGIA; VALENCIA, PRISCA; VARGAS,
LOURDES; VELASCO, LOLITA; VELASCO, MILAGROS; VELASQUEZ, MARIA; VIADOR, PENNSYLVANIA; VICENTE,
SHIRLEY; VILLANUEVA, DANIEL; VILLANUEVA, NELIA; VILLAPANDO, AMPARO; VILLARIN, ARLENE; VILLARUEL,
ANECITA; VILLALBA, FRANCIA; VISTAN, AMELIA; VIVAS, EDITH; YANZA, CORAZON; YAO, ANA MARIA; YERO,
ELENA; YUMUL ERLINDA; and ZAGALA, DALISAY, petitioners,
vs.
COURT OF APPEALS, THE CIVIL SERVICE COMMISSION and the SECRETARY OF EDUCATION, CULTURE AND
SPORTS, respondents.
DECISION
PURISIMA, J.:
At bar are consolidated petitions for review on certiorari under Rule 45 of the Rules of Court assailing the Decision, dated
February 26, 1997, of the Court of Appeals1 in CA-G.R. SP No. 39722.
Petitioners are public school teachers from various schools in the National Capital Region who incurred unauthorized absences
in connection with or in furtherance of their then on-going "mass action" held sometime in September 1990. Confronted with the
strike which threatened to disrupt classes in public schools, former Secretary Isidro Cariño of the Department of Education
Culture and Sports (DECS) issued a Memorandum2 ordering them (subject public school teachers) to return to work under pain
of dismissal. But the said Memorandum was ignored by petitioners, prompting the DECS Secretary to lodge administrative
complaints against them for grave misconduct, gross neglect of duty, violation of the Civil Service law and rules and reasonable
office regulations, refusal to perform official duty, gross insubordination, conduct prejudicial to the public interest, and absence
without leave.
Petitioners were given five (5) days from receipt of the formal charge to answer the same. They were also given an option to
elect a formal investigation and were informed of their right to avail of the assistance of a lawyer of their choice, but despite the
time, aforesaid option and right afforded them, they failed to answer the charges.
Thereafter, investigation committees were created to investigate and hear the cases of petitioners, and the school principals
concerned were called to shed light on the inquiry.
Subsequently, DECS Secretary Isidro Cariño rendered separate judgments finding petitioners guilty, as charged, and dismissing
them from the service "effective immediately". Such decisions were affirmed by the Merit and System Protection Board (MSPB).
On appeal to it, the Civil Service Commission in similarly worded Resolutions, found petitioners guilty of "conduct prejudicial to
the best interest of the service" but it imposed only six (6) months' suspension without pay. In the case of petitioner Erlinda
Abenis, the Resolution with respect to her disposed thus:
"WHEREFORE, the Commission hereby finds the Respondent-Appellant guilty of Conduct Prejudicial to the Best Interest of the
Service. She is meted out the penalty of six (6) months suspension without pay. Considering the length of time that she has
been out of service, she is now automatically reinstated in the service without payment of back salaries." 3
Dissatisfied with the dispositions adverse to them, petitioners brought a petition for certiorari. Docketed as CA-G.R. SP No.
39722, the Court of Appeals came out with its decision of February 27, 1997 ruling as follows:
"WHEREFORE, the resolutions of the Civil Service Commission finding the petitioners guilty of conduct prejudicial to the best
interest of the service and suspending them for six (6) months are hereby affirmed, with the MODIFICATION that petitioners
shall be entitled to back salaries for the period they were not allowed to teach, except for the six (6) months during which they
were suspended for cause.
SO ORDERED."4
Therefrom, DECS Secretary Isidro Cariño, the Civil Service Commission and the public school teachers involved filed separate
petitions with this Court questioning the decision of the Court of Appeals.
On December 9, 1997, the Court resolved to order the consolidation of the petitions.5
In G.R. No. 130911, petitioners contend that:
THE RESPONDENT COURT OF APPEALS GRIEVIOUSLY ERRED WHEN IT AFFIRMED THE ASSAILED RESOLUTIONS OF
THE OF THE CIVIL SERVICE COMMISSION THAT WRONGLY PENALIZED THE PETITIONERS WHOSE ONLY "OFFENSE"
WAS TO EXERCISE THEIR CONSTITUTIONAL RIGHT PEACEABLY TO ASSEMBLE AND PETITION THE GOVERNMENT
FOR REDRESS OF GRIEVANCES.
In G. R. No. 128559, the DECS Secretary placed reliance on the assignment of errors, that:
I.
THE RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN ORDERING THE PAYMENT OF BACK SALARIES IN
FAVOR OF PRIVATE RESPONDENTS DESPITE FINDING THEM GUILTY OF THE ADMINISTRATIVE CHARGES LODGED
AGAINST THEM.
II.
RESPONDENT COURT OF APPEAL (sic) SERIOUSLY ERRED IN AWARDING BACK SALARIES IN FAVOR OF PRIVATE
RESPONDENTS WITHOUT GIVING ANY LEGAL AND/OR FACTUAL BASIS THEREFOR.
The public school teachers before the Court theorized that the mass actions they staged in September 1990 were not "strikes".
According to them, they were merely exercising their constitutional right to peaceably assemble and petition the government for
redress of grievances.
This contention is barren of merit. The issue posed has been settled.
In Alipat vs. Court of Appeals,6 the Court succinctly held that the mass actions of September/October 1990 participated in by the
public school teachers of Metro Manila constituted a strike in every sense of the term. In De la Cruz vs. Court of Appeals, a
similar case7 involving "mass actions" of public school teachers, the Court ratiocinated:
"As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public School Teachers
Association v. Laguio, Jr. and Alliance of Concerned Teachers vs. Hon. Isidro Cariño that the mass actions of
September/October 1990 staged by Metro Manila public school teachers 'amounted to a strike in every sense of the term,
constituting as they did, a concerted and unauthorized stoppage of or absence from work which it was said teachers' sworn duty
to perform, carried out for essentially economic reasons - to protest and pressure the Government to correct what, among other
grievances, the strikers perceived to be the unjust or prejudicial implementation of the salary standardization law insofar as they
were concerned, the non-payment or delay in payment of various fringe benefits and allowances to which they were entitled, and
the imposition of additional teaching loads and longer teaching hours.' In Rolando Gan v. Civil Service Commission, we denied
the claim that the teachers were thereby denied their rights to peaceably assemble and petition the government for redress of
grievances reasoning that this constitutional liberty to be upheld like any other liberty, must be exercised within reasonable limits
so as not to prejudice the public welfare. But the public school teachers in the case of the 1990 mass actions did not exercise
their constitutional right within reasonable limits. On the contrary they committed acts prejudicial to the best interest of the
service by staging the mass protests on regular school days, abandoning their classes and refusing to go back even after they
had been ordered to do so. Had the teachers availed of their free time-recess, after classes, weekends or holidays-to dramatize
their grievances and to dialogue with the proper authorities within the bounds of law, no one-not the DECS, the CSC or even the
Supreme Court - could have held them liable for their participation in the mass actions.8 1âwphi1
In light of the foregoing disquisition and jurisprudence in point, the Court is of the opinion, and so holds, that the Court of
Appeals erred not in affirming the Resolutions of the Civil Service Commission finding the petitioning public school teachers
guilty of conduct prejudicial to the best interest of the service.
This Court has likewise put to rest the issue of whether back wages may be awarded to subject public school teachers who were
ordered reinstated in the service after the orders of dismissal issued by the DECS Secretary were commuted by the Civil Service
Commission to suspension of six (6) months without pay. To repeat, in Alipat vs. Court of Appeals, in denying the teachers'
claim for back wages, the Court said:
"This Court has already resolved the issue of whether back wages may be awarded to the teachers who were ordered reinstated
to the service after the dismissal orders of Secretary Cariño were commuted by the Civil Service Commission to six (6) months'
suspension. The issue was resolved in the negative in Bangalisan vs. Court of Appeals on the ground that the teachers were
neither exonerated nor unjustifiably suspended. The Bangalisan case also ruled that the immediate implementation of the
dismissal orders, being clearly sanctioned by law, was not unjustified. The Court held that as regards the payment of back
salaries during the period of suspension of a member of the civil service who is subsequently ordered reinstated, the payment of
back wages may be decreed if 'he is found innocent of the charges which caused the suspension and when the suspension is
unjustified.'
Citing the Bangalisan ruling, this Court in Jacinto vs. Court of Appeals held that when the teachers have given cause for their
suspension - i.e., the unjustified abandonment of classes to the prejudice of their students-they were not fully innocent of the
charges against them although they were eventually found guilty only of conduct prejudicial to the best interest of the service
and not grave misconduct or other offenses warranting their dismissal from service; 'being found liable for a lesser offense in not
equivalent to exoneration"9
Evidently, the ruling of the Court of Appeals that the public school teachers involved are "entitled to back salaries for the period
they were not allowed to teach, except for the six (6) months period during which they were suspended for cause", does not
accord with prevailing jurisprudence. Stare decisis et non quieta movere. Stand by the decisions and disturb not what is
settled.10 It is a salutary and necessary judicial practice that when a court has laid down a principle of law applicable to a certain
state of facts, it must adhere to such principle and apply it to all future cases in which the facts sued upon are substantially the
same.11
It is beyond cavil that the public school teachers before the Court participated in the September 1990 mass actions and refused
to obey the return to work order of the DECS Secretary. It is equally undisputed that they were not completely exculpated of the
charges against them, as they were adjudged guilty of committing acts prejudicial to the best interest of the service.
Consequently, with the ground for their suspension duly stated, the denial of their prayer for exoneration and payment of back
wages is in order.
WHEREFORE, the petition in G.R. No. 128559 is GRANTED; and the petition in G.R. No. 130911 DENIED. The Decision of the
Court of Appeals in CA-G.R. SP No. 39722 is AFFIRMED with the MODIFICATION that the award of back salaries in favor of
subject public school teachers is hereby deleted. No pronouncement as to costs.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 89865 June 27, 1991
ATTY. RIZAL P. ECHECHE, petitioner,

vs.
THE HON. COURT OF APPEALS, OFFICE OF THE PRESIDENT, MALACANANG PALACE, MANILA, respondents.
Rizal P. Echeche and Diosdado L. Dapucanta for petitioner.
PARAS, J.:
This is a petition for review on certiorari of the decision * rendered by the Court of Appeals on April 7, 1989 in CA-G.R. SP No.
15514 entitled "Atty. Rizal P. Echeche, Petitioner vs. Office of the President of the Philippines, Malacanang, Manila, Executive
Secretary Catalina Macaraig, and Secretary of the Budget and Management, Respondents," (Annex "A"; pp. 25-31, Rollo),
petitioner's Motion for Reconsideration thereof having been denied by the Court of Appeals in its Resolution ** dated August 24,
1989. (Annex "B"; p. 33, Rollo)
The uncontroverted facts of the case are:
Atty. Rizal P. Echeche was employed at the Bureau of Mines (now Bureau of Mines and Geo-Sciences) on June 27, 1974. He
was, however, included in the lists of alleged undesirable and unfit public servants who were purged under Letter of Instruction
petition No. 309 dated August 22, 1975.
On November 3, 1975, petitioner filed a letter-request for reinstatement with the Appeals Committee created under Executive
Order No. 370, series of 1975, which was forwarded by the Office of the President to then Minister of Natural Resources in a
letter-referral dated February 8, 1978, This was followed by another letter-request dated July 7, 1982 which was again forwarded
to the Minister of Natural Resources and endorsed to the Bureau of Mines. The Bureau of Mines did not give any comment on
the petition, neither the Minister of Natural Resources.
Three years lapsed before his letter-request was initially acted upon. The Presidential Staff Director forwarded to then Secretary
Jose Leido, Jr., of the Ministry of Natural Resources pertinent papers, relative to the petitions for reinstatement of purged
officials and employees of the Department, for action and disposition.
On August 26, 1985, a Memorandum for the Minister of Natural Resources was issued by Moreno B. Cruz, Assistant Secretary
for Legal Affairs ordering the reinstatement of Atty. Rizal P. Echeche with payment of backwages "because he was removed
from the service without cause." (Annex "F", Rollo, p. 77)
Finally, in a Resolution dated May 2, 1986, the Assistant Secretary for Legal Affairs, Alexander C. Castro, of the Ministry of
Natural Resources, signing with authority from the Minister, ordered reinstatement, in the following tenor:
Wherefore, petitioner shall be reinstated as legal officer in the Bureau of Mines and Geo-Sciences with backwages
during the time of separation. However, he shall undergo a physical and psychological examination to determine his
fitness as a legal officer; otherwise, petitioner shall be retired for reasons of disability or incapacity and be paid his
corresponding benefits. (Comment of the Office of Solicitor General, p.5; Rollo, p. 108).
On November 18, 1986, petitioner was reemployed as Legal Officer III by the Director of Mines and Geo-Sciences; he was not
reinstated to his former position because the functions of Legal Officer II were transferred to Legal Officer III.
Petitioner sought payment of his back salaries, allowances, and bonuses, pursuant to the Resolution of the Department of
Natural Resources. The Director of Mines and Geo-Sciences and Minister Carlos G. Dominguez of the Department of Natural
Resources recommended payment, thereof. (Ibid., p. 6; Rollo, p. 109)
The Department of Budget and Management referred the matter to the Office of the Executive Secretary. The Office of the
Executive Secretary denied request for payment because petitioner was merely re-employed, not reinstated as he was never
recommended by the Appeals Committee for reinstatement. His new appointment was made pursuant to the grant of executive
clemency and LOI 647 which confined such presidential clemency to reemployment not reinstatement.
Petitioner's Motion for Reconsideration was denied by Deputy Executive Secretary Magdangal B. Elma, in the following tenor:
Based on the foregoing, the request of Echeche for payment of back salaries, allowances, and bonuses was denied as he was
then "considered under suspension without pay." (Ibid., p. 7; Rollo, p. 110).
On August 20, 1988, Atty. Rizal Echeche filed a Petition for Review on certiorari directly with the Supreme Court seeking the
annulment of the decision of the Office of the President. The Supreme Court referred the case to the Court of Appeals. The
Court of Appeals dismissed the petition for lack of merit stating that "there is no legal basis for granting the petitioner his request
for back salaries, allowances and bonuses" (Annex "A", Decision of Court of Appeals, p. 7; Rollo, p. 31.)
Petitioner filed a Motion for Reconsideration but the Court of Appeals denied the same. Hence, this petition.
Petitioner, in his Reply to Comment, submits the following issues:
THE HON. COURT OF APPEALS ERRED IN HOLDING THAT THERE IS NO LEGAL BASIS FOR GRANTING
PETITIONER'S REQUEST FOR (SIC) BACK SALARIES, ALLOWANCES AND BONUSES.
II
THE HON. COURT OF APPEALS ERRED IN HOLDING THAT RESPONDENT-PUBLIC OFFICIALS DID NOT
COMMIT ANY ERROR IN DENYING PETITIONER'S REQUEST FOR THE PAYMENT OF BACK SALARIES,
BONUSES AND ALLOWANCES.
III
THE HON. COURT OF APPEALS ERRED IN APPLYING THE CASE OF "CLEMENTE VS. COA, G.R. No. L-47793,
March 30, 1984" IN THIS CASE.
IV
THE HON. COURT OF APPEALS DECIDED A QUESTION OF SUBSTANCE NOT HERETOFORE DECIDED BY THE
HON. SUPREME COURT. (p. 128, Rollo)
Under the 1973 Constitution, Article XII-B, Section 3, provides that "no officer or employee in the Civil Service shall be
suspended or dismissed except for cause as provided by law." This provision guarantees that the suspension or dismissal can
be made only "for cause as provided by law." Dismissal for cause does not necessarily mean that the dismissed officer or
employee must be charged in court or administratively and must be given his day in court or afforded due process of law.
Dismissal for cause implies that there is reasonable ground provided by law to justify the dismissal of an officer or employee.
In the case at bar, petitioner was dismissed under Letter of Instruction No. 309. Petitioner contends that Letter of Instruction No.
309 is unconstitutional because it violates the above constitutional mandate. He further argues that there was no valid cause to
purge him because "there was no pending administrative, civil, or criminal charges against him." (Petition, p. 5; Rollo, p. 11)
Said issue has long been settled in the case of Clemente vs. Commission on Audit (128 SCRA 297), which the
appellate court correctly applied. In that case, the petitioner was also purged under LOI 309. There was no pending
administrative charge, or any disciplinary action against him. Eventually he was reinstated, and he also sought the
payment of back salaries. His request was denied by the executive department, which denial was affirmed by the
Supreme Court. The Supreme Court, through Justice (later Chief Justice) Makasiar, ruled:
As we see it, the "September 1975 Purge" is part of the process of cleaning up the government machineries, which
upon the imposition of martial law, the President had taken to task. . . . Too well known fact is the evil that plagued
government service. Graft and corruption among government employees and officers were too rampant in almost all
offices. Numerous public officials, using their high positions for personal gain at the expense of the public, have not
lived up to the public trust. The program of reforms of the President in the New Society by instilling discipline in the
people, particularly those in the government service, and by weeding out from the service employees and officials
considered notoriously undesirable were envisioned as an answer to the long felt need for restoring the confidence of
the people in the government.
The constitutionality of LOI 309 was settled in the same case:
The President, of course, did not order the "September 1975 purge" by a snap of his fingers. As adverted to earlier, the
September, 1975 purge was made pursuant to Letter of Instruction No. 309, series of 1975 which was issued under the
authority of Section 9, Article XVII of the Constitution, which vests upon the incumbent President the power to remove
officials and employees of the existing government. Pertinent portion of Section 9 reads:
Sec. 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue
in office unless otherwise provided by law or decree by the incumbent President of the Philippines . . .
There is no reason for Us to deviate from settled rules and jurisprudence. LOI 309 is constitutional.
The arguments of petitioner are premised on the unconstitutionality of LOI 309. His request for payment of back
salaries, bonuses and allowances depends upon his argument that his "purge" from the public service in 1973 was in
gross violation of his constitutional rights to due process and therefore patently illegal. As shown in the previous
discussion, LOI 309 is constitutional, hence the dismissal of Atty. Rizal P. Echeche was not illegal.
Petitioner's right to back salaries, allowances and bonuses is without legal basis. The Director of the Bureau of Mines in
dismissing petitioner pursuant to LOI 309, cannot be said to have acted in bad faith and with grave abuse of discretion.
There was no ill will or personal malice in dismissing petitioner. In the absence of proof that the Director acted in bad
faith and with grave abuse of discretion, petitioner is not entitled to back salaries, bonuses and allowances. (Octot vs.
Ibanez, et al., 111 SCRA 79).
Letter of Instruction 647 gave an opportunity for the petitioner to be employed back. Section I of LOI 647 states:
1. All officials and employees who were not recommended for reinstatement by the Appeals Committee but are
qualified to reenter the government service are hereby granted executive clemency for purpose of
reemployment subject to Civil Service Law and Rules if recommended by their respective department heads.
The grant of executive clemency under LOI 647 was for the purpose of re-employment, not reinstatement. Re-
employment implies that one is hired anew, which does not carry with it payment of backwages.
To bolster his position in his last assignment of errors, petitioner argues that the Court of Appeals ruled on an order
which has already become final and executory. He reasoned that the order of the Minister of Natural Resources,
reinstating the petitioner and ordering the payment of his backwages, has attained finality. The Secretary of Budget and
Management failed to file any motion for reconsideration from the approval of payment. The arguments of petitioner are
not supported by facts. The order of the Minister of Natural Resources did not attain finality, in the sense that it may no
longer be reviewed. The acts of Ministers (now Cabinet Secretaries) are reviewable by the President in the exercise of
his power of control.
The President shall have control of all the executive departments, bureaus and offices. He shall ensure that the
laws be faithfully executed. (1987 Constitution, Art. VII, Sec. 17)
Sec. 10. The President shall have control of the ministries.1âwphi1 (1973 Constitution, Art. VII)
Control means "the power of an officer to alter or modify or nullify, or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former for that of the latter." (Hebron vs. Reyes, 104 Phil. 175)
The President can, by virtue of his power of control, review, modify, alter or nullify any action, or decision of his subordinate in
the executive departments, bureaus or offices under him. (Oliveros-Torre vs. Bayot, 58 SCRA 272; Ang-Angco vs. Castillo, et
al., 118 Phil. 1468). He can exercise this power motu proprio without need of any appeal from any party. (Oliveros-Torre vs.
Bayot, supra).
The President is not expected to perform in person an the multifarious executive and administrative functions. The Office of the
Executive Secretary is an auxillary unit which assists the President. Under our constitutional set-up, the Executive Secretary
acts for and in behalf of the President: and by authority of the President, he has undisputed jurisdiction to affirm, modify, or even
reverse any order of the Secretary of Natural Resources and other Cabinet Secretaries. Where the Executive Secretary acts "by
authority of the President" his decision is that of the President. (Lacson-Magallanes Co., Inc. vs. Pano, 21 SCRA 895).
In the case at bar, the Deputy Executive Secretary denied the request of the petitioner for payment of back salaries, allowances
and bonuses. The decision of the Office of the Executive Secretary must be given full faith and credit by our courts as an act of
the Chief Executive. It does not matter, though, that considering the extensive range of authority of the Executive Secretary, the
decisions of such office which are attributable to the Executive Secretary have been performed by the Assistant or Deputy
Executive Secretaries. (Barte vs. Dichoso, 47 SCRA 77).
Hence, the questionable order of the Minister of Natural Resources did not attain finality, and the Court of Appeals, therefore, did
not commit any error in ruling thereon.
WHEREFORE, PREMISES CONSIDERED, the petition is hereby DENIED and the decision of the Court of Appeals is hereby
AFFIRMED, without costs.
SO ORDERED.
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 77373 August 22, 1991
EDMUNDO C. JOCOM, petitioner,

vs.
THE HON. ANDRES C. REGALADO, Presiding Judge of the Regional Court, 5th Judicial Region, Branch XXV, Naga City
and JESSIE M. ROBREDO, respondents.
Romero, Lagman, Torres, Arrieta & Evangelista for petitioner.

Luis General, Jr. for private respondent.
PADILLA, J.:
This is a petition for certiorari, prohibition and mandamus, with prayer for the issuance of a writ of preliminary injunction and/or
temporary restraining order, to annul the temporary restraining order issued by the Regional Trial Court of Naga City, Branch
XXV contained in its orders dated 3 and 9 February 19871 and its orders dated 11 and 18 February 1987 denying petitioner's
motion for raffle of the case and motion to dismiss, respectively. 2 Petitioner also seeks to enjoin the respondent judge from
further enforcing the disputed orders and from proceeding with the hearing of the case before the court a quo, and to compel
private respondent Jessie M. Robredo to vacate the Office of Project Director of the Bicol River Basin Development Program
(hereinafter referred to as BRBDP, for brevity), and to order him (Robredo) to turn over the said office to herein petitioner
Eduardo C. Jocom. The factual background of the case is as follows:
On 7 May 1973, the Bicol River Basin Council was created under PD 412, to oversee, unify and integrate the administration and
implementation of the pilot river basin development program of the country. The Council was headed by an Executive Director
and four (4) Deputy Directors.
On 28 April 1978, PD 926 modified the organizational structure of BRBDP by placing it under the supervision and direction of the
Cabinet Coordinating Committee on Integrated Rural Development Projects of the National Economic and Development
Authority (NEDA). Under Sec. 5 of said law, the Cabinet Committee Coordinator for the Program had the power to appoint the
"Program Director" as head of the program office and other heads of major organizational subdivisions of the program. The
"Program Director" had the following powers and functions:
See. 6. Powers and Functions of the Program Director. — The Program Director shall exercise the following powers
and functions:
a. Execute and administer the policies and decisions of the Cabinet Committee;
b. Directly coordinate the activities of all implementing departments and agencies in the planning and implementation of
the projects;
c. Subject periodic financial and work accomplishment reports relating to project implementation to the Cabinet
Committee, the Budget Commission and other Agencies concerned through the Cabinet Committee Coordinator;
d. Consolidate, for the approval of the Cabinet Committee Coordinator, requests for budget releases of projects of the
implementing departments and agencies in accordance with consolidated plans, budgets and work programs approved
by the Cabinet Committee;
e. Collect and consolidate all project accounts under the Program maintained by the implementing departments and
agencies;
f. Organize and manage the Program Office and adopt administrative rules and procedures for its internal management.
g. Call upon any department, bureau, office, agency, instrumentality or any political subdivision of the Government to
assist in the Planning and implementation of the Program;
h. Enter into contracts with private or public entities in connection with the functions of the Program Office, subject to the
approval of the Cabinet Committee Coordinator; and
i. Perform such other functions as may be assigned by the Cabinet Committee Coordinator. 3
On 17 May 1978, PD 1378 created the National Council on Integrated Area Development (NACLAD) in lieu of the Cabinet
Coordinating Committee on Integrated Rural Development Projects, with the President of the Philippines as Chairman. Despite
the abolition of the Cabinet Coordinating Committee, the "Project Directors" of the various on-going projects, such as the
Mindoro, Bicol, Samar and Cagayan Projects, retained their respective powers, functions, tenures and compensation.
On 11 June 1978, PD 1553 amended certain provisions of PD 926 modifying the organizational structure of BRBDP.
On 4 July 1981, Executive Order No. 708 transferred the Chairmanship of the National Council on Integrated Area Development
(NACIAD) to the Prime Minister.
On 16 September 1981, Executive Order No. 835 revised the charter of NACIAD, Sec. 7 thereof authorized the Council to
establish ad hoc support staffs as may be necessary for particular integrated area development projects, which shall exist for the
duration of said projects. Each project support staff shall be headed by a "Project Director." The Prime Minister as Chairman of
the Council was vested with power to appoint the "Project Directors" of the various integrated area development projects.
After the February 1986 revolution, Vice-President Salvador H. Laurel was appointed by the President to be the Minister and
he ipso facto became the Chairman of the National Council on Integrated Area Development (NACIAD), with the power to
appoint the Project Directors of the various integrated area development projects in the country 4 which include the Bicol River
Basin Development Program (BRBDP)5
In the exercise of his powers as Chairman of NACIAD before the proclamation of the Freedom Constitution, on 25 March 1986,
Vice-President Laurel appointed private respondent Jessie M. Robredo to the position of "Program Director" of BRBDP vice
Carmelo Villacorta.6
In the late afternoon of that same day (25 March 1986), President Aquino issued Proc. No. 3 (Freedom Constitution), Article 1 of
which declared that Art. XI of the 1973 Constitution and the amendments thereto dealing with the Prime Minister and the Cabinet
were deemed superseded.
However, on 27 January 1987, Vice-President Laurel appointed petitioner Jocom to the position of "Project Director" of
BRBDP.7 Simultaneous with petitioner Jocom's appointment, private respondent Robredo was informed of his termination from
office without stating the ground for his dismissal.8
Armed with his appointment, petitioner attempted to assume the Office of "Project Director" of BRBDP but private respondent,
allegedly with some armed men, prevented petitioner from assuming said office by barricading the building of BRBDP, located at
Pili, Camarines Sur.
To compel petitioner Jocom to desist from attempting to assume the Office of Project Director of BRBDP, private respondent
Robredo filed a petition for injunction with the RTC of Naga City, Branch XXV, docketed as RTC-87-1131 On 3 February 1987,
the trial court issued an order "enjoining respondent Edmundo C. Jocom, for a period of twenty (20) days from the date hereof,
to desist from assuming the above-named office such as exercising the powers and performing the functions thereof," and set
the hearing for issuance of preliminary injunction.9
Based on the amended petition filed by private respondent Robredo, alleging that the finds of BRBDP deposited with the
Philippine National Bank were frozen by the bank, which could result in paralyzing the operations of BRBDP, and in order to give
force and effect to the 3 February 1987 order granting the temporary restraining order, the trial court issued another order dated
9 February 1987,10 ordering Messrs. Vicente B. de la Vina and Ramon Encina, in their capacities as Branch Manager and
Cashier of PNB, respectively, "to honor all the checks of the BRBDP under petitioner, Jessie M. Robredo, as Project Director
and until further orders."
On 3 February 1987, petitioner Jocom moved for the raffle of the case, claiming that there was no raffle committee which
conducted a special raffle of the case. In an order dated 11 February 1987, the court a quo denied said motion on the ground
that the same should have been addressed to the Executive Judge who presided over such special raffle; and that insofar as the
court a quo was concerned, the legal presumption of regularity of performance of duty in conducting the raffle holds.11
Petitioner then moved to dismiss the private respondent's petition, on jurisdictional ground, relying on Sec. 4 of Executive Order
No. 17 which provides that no restraining order or preliminary injunction can be issued by any court to enjoin the
separation/replacement of any official or employee in the government service. On 18 February 1987, the trial court denied said
motion, holding that the prohibition against the issuance of an injunction and/or restraining order is not applicable to an
appointee under the Freedom Constitution, who is actually a replacement to an employee appointed under the 1973
Constitution. Hence, this petition.
To support his claim as the rightful and legal appointee to the Office of Project Director of BRBDP, petitioner argues that private
respondent Robredo is not qualified for the position of "Project Director" because he was below the required age of thirty (30)
years provided under the law at the time of his appointment; that a "Project Director" performs an executive function and the
position is without a fixed term, thus, the appointee may be removed with or without cause upon the discretion of the appointing
authority; and that Sec. 4 of Executive Order No. 17 does not allow the court to enjoin or restrain the separation/replacement of
government employees in the course of a reorganization process; that private respondent's recourse for his alleged removal
should not have been an independent action for injunction but a petition for reconsideration before the Committee created by
E.O. No. 17.
On the other hand, private respondent Robredo alleges that petitioner's appointment is void, because all the executive powers
and functions devolving upon Vice-President Laurel as Prime Minister, including his power as Chairman of NACIAD to appoint
the Project Director of BRBDP had reverted to the President after the promulgation of the Freedom Constitution, which
abolished the position of Prime Minister.
In a recent Executive Order (No. 374) promulgated on 30 May 1989, the BRBDP was abolished and its functions were
transferred to the Regional Development Council and to the Governors of Camarines Sur and Albay. 12 All qualified personnel
affected by such abolition are entitled to receive retirement benefits.13 The abolition of BRBDP notwithstanding, we find it
necessary to settle the issue as to who was the proper appointee to the position of Program/Project Director of BRBDP, entitled
to hold said office prior to said abolition, to determine the party entitled to receive the separation benefits provided by law.
We find insufficient merit in the petition.
After a careful study of the various laws affecting the creation of BRBDP, it appears that the position of "Program Director" under
PD 926 (creating BRBDP) and the position of "Project Director" under PD 1378 and Executive Order Nos. 731 and 835 (charter
of NACIAD), are one and the same position, with the main function of heading the BRBDP. The power to appoint the
Program/Project Director to head the BRBDP originally belonged to the Cabinet Committee Coordination, but with the
subsequent amendments to the organizational structure of BRBDP and that of NACIAD, the power was delegated to the
Chairman of NACIAD.
During Vice-President Laurel's short tenure as Prime Minister, he became the Chairman of NACIAD, with the power to appoint
the Program/Project Directors of the various integrated area development projects, including the BRBDP. However, after the
promulgation of the Freedom Constitution, all provisions regarding the Office of the Prime Minister were deleted, which indicated
the abolition of said office. The control over all ministries and other functions and powers pertaining to the Prime Minister
reverted to the President. In view of the abolition of the Office of Prime Minister, the functions of Vice-President Laurel as
Chairman of NACIAD also ceased, and the Chairmanship became part of the executive functions of the President.
As Chairman of NACIAD, the President thru her Deputy Executive Secretary, exercised the functions and powers of said office
and informed the Congressmen of the different provinces of the Bicol Region of the development projects of NACIAD in their
provinces thru BRBDP, as contained in her letters dated 8 July 1987. 14
At the time of petitioner's appointment, Vice-President Laurel had already ceased to be Chairman of NACIAD.1âwphi1 His
appointment of herein petitioner to the position of Program/Project Director and the removal of private respondent from said
position, were in the exercise of power that already belonged to the President. Hence, such appointment and removal were null
and void, and petitioner cannot claim to have had a valid right to the position of Program/Project Director of BRBDP.
But, even assuming that Vice-President Laurel still had the power to appoint herein petitioner as Program/Project Director of
BRBDP, private respondent could not be removed from said position, without just cause. There was thus no vacancy in the
office justifying the appointment thereto of petitioner Jocom.
All branches, subdivisions, instrumentalities and agencies of the government, including government owned and controlled
corporations with original charters are covered by the civil service and its rules and regulations. Appointments to the civil service
are based on merit and fitness determined by competitive examinations, except appointments to positions which are policy
determining, primarily confidential or highly technical.15 The Civil Service Law classifies the positions in the civil service into
career and non-career service positions. The career service is characterized by (1) entrance based on merit and fitness to be
determined as far as practicable by competitive examinations, or based on highly technical qualifications; (2) opportunity for
advancement to higher career positions; and (3) security of tenure;16 while a non-career position is characterized by (1) entrance
on bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to
a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or limited to the
duration of a particular project for which purpose employment was extended. 17
Regardless of the classification of the position held by a government employee covered by civil service rules, be it a career or
non-career position, such employee may not be removed without just cause. An employee who belongs to the non-career
service is protected from removal or suspension without just cause and non-observance of due process.
xxx xxx xxx
As an employee in the civil service and as civil service eligible, respondent is entitled to the benefits, rights and
privileges extended to those belonging to the service. He cannot be removed or dismissed without just cause, much
less, without formal charge or prior notice. The fact that his position falls under the unclassified service or the non-
career service does not remove him from the protective mantle of the Civil Service Law. Persons in the unclassified
service are merely so designated because the nature of their work and qualifications are not subject to classification
unlike those in the classified service. ...18
The constitutional and statutory guarantee of security of tenure is extended to both those in the career and non-career service
positions, and the cause under which an employee may be removed or suspended must naturally have some relation to the
character or fitness of the officer or employee, for the discharge of the functions of his office 19 or expiration of the project for
which employment was extended.
The law20 modifying the organizational structure of BRBDP enumerated the following qualifications of the appointee to the
position of "Project Director," namely: (a) a natural-born citizen of the Philippines; (b) at least thirty (30) years of age; and (c) of
proven record of executive competence in the field of public administration and/or infrastructure projects and/or in the
management of agricultural, industrial or commercial enterprises. Although petitioner claims that private respondent was below
the age of 30 years at the time of his appointment to qualify to the position of Program-Project Director, no sufficient proof was
presented to substantiate such claim.
With regard to the tenure of the appointee to the position of Program/Project Director, PD 926 is silent on the matter. However,
in the Revised Charter of NACIAD,21 the Council is given the authority to establish ad hoc support staffs as may be necessary
for particular integrated area development projects to be headed by a "Project Director," which shall exist only for the duration of
said projects. The Council is likewise given the power to re-organize or abolish project support staffs under its supervision and
control.
From the foregoing provisions of law, it would appear that the position of Program/Project Director falls under the classification of
a non-career position where the tenure of the appointee is subject to the duration of the project, while entrance to the position is
based on the fact that the appointee possess all the qualifications required by law for the position. However, despite the
classification of the position of Program/Project Director as a non-career position, the appointee was nonetheless protected by
the rules on security of tenure, and could not be removed from office at the whim and caprice of the appointing authorities
without just cause and without observing the rules on due process. The termination of private respondent from the office of
Program/Project Director failed to state the ground of such removal from office, thus, his removal from office was without just
cause.
Sec. 4 of Exec. Order No. 17,22 which prohibits the issuance of any restraining order or writ of preliminary injunction to enjoin the
separation/replacement of any official or employee in the government service, is intended to prevent delay in the government
reorganization process provided under the Freedom Constitution. However, such ban cannot apply in the case at bar because
petitioner Jocom's appointment was not made pursuant to a valid reorganization. At the time of his appointment, Vice-President
Laurel was no longer the Chairman of NACIAD and had lost the power to appoint the Program/Project Director, or even
reorganize the BRBDP.
ACCORDINGLY, petition is hereby DISMISSED.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 110168 August 4, 1994
RODOLFO R. PALMERA, petitioner,

vs.
THE CIVIL SERVICE COMMISSION AND THE SECRETARY OF PUBLIC WORKS AND HIGHWAYS, respondents.
Estelito P. Mendoza for petitioner.
CRUZ, J.:
Petitioner started working in the government in 1953 and has held various positions in the Ministry of Public Works. On October
1, 1982, upon the merger of the Ministry of Public Works and the Ministry of Public Highways, he was appointed Assistant
Regional Director of the National Capital Region (NCR).
On April 24, 1986, Palmera was directed by then DPWH Minister Rogaciano M. Mercado to turn over his office to Pacifico
Mendoza (who had been assigned thereat as OIC) and to report to the MPWH Central Office for his new assignment.
On June 26, 1987, then DPWH Secretary Vicente R. Jayme charged Palmera, along with several others, with grave misconduct
and dishonesty in two administrative cases denominated as Adm. Case Nos. 87-28 and 87-29. Thereafter, all the respondents
were placed under 90-day preventive suspension, which was lifted on November 16, 1987.
On December 1, 1987, another Memorandum was issued by then DPWH Secretary J. Nery Ferrer charging Palmera, together
with other respondents, with grave misconduct and dishonesty. In this Adm. Case No. 87-44, Palmera was again placed under
preventive suspension.
All of the above-mentioned administrative cases were based on the recommendation of the DPWH Fact-Finding Committee in
an investigation of anomalies in the flood control and related projects in Metro Manila. Its findings were embodied in a number of
separate complaints and informations filed with the Office of the Tanodbayan (Ombudsman) and the Sandiganbayan, for
malversation, estafa, falsification and violations of R. A. No. 3019, and P. D. 1759.
On May 19, 1988, Palmera's second preventive suspension was lifted but he was no longer ordered reinstated.
The petitioner alleges that it was while he was still under preventive suspension that he learned of Pacifico Mendoza's
appointment to his position. Palmera said he was repeatedly assured he would be appointed to another position but no such
appointment was ever extended him.
Instead, the DPWH Assistant Secretary for Legal Services recommended that Palmera be hired on a contractual basis for the
period from January 1 to December 31, 1987, to provide a legal basis for the payment of his salaries. After December 31, 1987,
management would decide whether or not to renew the contract. The petitioner signed the contract but it was never renewed.
On November 21, 1991, Palmera filed with respondent Civil Service Commission a letter-appeal for his reinstatement with full
back wages and without loss of seniority rights. He also prayed for the nullification of the appointment of Mendoza as Assistant
Regional Director.
The DPWH commented on the letter-appeal thus:
His acceptance of a contractual appointment as Technical Assistant to the Secretary on January 2,

1987 is an indication of his relinquishment of his former position as Asst. Regional Director. After the
expiration of the Contract of Employment (contractual), no other appointment was issued to Mr.
Palmera.
In its Resolution No. 92-944 dated July 23, 1992, the Commission found the contract of employment issued to Palmera to be
violative of the Civil Service Law and Rules. Nevertheless, it dismissed the appeal mainly on the ground of laches. According to
the Commission, Palmera failed to contest the issuance of the contract and his non-reinstatement within a reasonable period,
thus rendering the appeal moot and academic.
On August 28, 1992, Palmera filed a motion for reconsideration of the resolution. He also submitted the affidavit of a certain
Amado Dungca, who claimed to be an employee of then Executive Secretary Joker P. Arroyo. Dungca declared that Secretary
Arroyo had on several occasions assured Palmera that he would make representations with DPWH officials for his reinstatement
or his appointment to a position of equivalent or higher rank.
The Commission rejected Dungca's affidavit as mere hearsay and denied the motion for lack of merit in its Resolution No. 93-
944 dated March 12, 1993.
In this petition to annul the resolution, it is alleged that the respondent Civil Service Commission committed grave abuse of
discretion:
1. In ruling that petitioner's acceptance of a contractual appointment was an indication of his

relinquishment of his position as Assistant Regional Director and foreclosed his right to contest his
non-reinstatement;
2. In holding that petitioner is guilty of laches; and
3. In arbitrarily disregarding constitutional right of petitioner to security of tenure.
It is not disputed that the petitioner has the constitutional right to security of tenure. P. D. 807 specifically includes the position of
Assistant Regional Director in the Career Executive Service. The career service is characterized by (1) entrance based on merit
and fitness to be determined as far as practicable by competitive examination, or based on highly technical qualifications; (2)
opportunity for advancement to higher career positions; and (3) security of tenure.
Security of tenure means that no officer or employee in the Civil Service shall be suspended or dismissed except for cause as
provided by law and after due process. Together with the merit and fitness rule, it is a basic feature of the civil service system.
The public respondent contends that by accepting the contract and assuming the temporary position of Technical Assistant to
the Secretary, the petitioner effectively relinquished his position as Assistant Regional Director and abided by the terms of the
contract, including the limitation of its duration. When he accepted his temporary appointment, he abandoned his right to security
of tenure conformably to the rulings of this Court, as in Romualdez v. Civil Service Commission: 1
(W)hen he accepted this temporary appointment, he was thereby effectively divested of security of
tenure. A temporary appointment does not give the appointee any definite tenure of office but makes it
dependent upon the pleasure of the appointing power.
The above-cited case is not on all fours with the present case. The circumstances surrounding the herein petitioner's acceptance
of the temporary appointment are different from those in Romualdez. In the latter case, Romualdez applied for the temporary
appointment in exchange for his permanent position and he acted on his own volition, with full knowledge of the consequences
of his act.
Palmera had no intention to abandon his permanent position and his security of tenure therein. The petitioner had been working
in the government for about 34 years. It cannot be reasonably supposed that by signing the contract, he was knowingly
relinquishing his permanent post and all his concomitant rights, including his accrued leave benefits. Furthermore, the petitioner
was already getting on in years and could not afford to face an uncertain future without a regular and steady income.
The memorandum issued by the Legal Officer of the DPWH explains the rationale for the execution of the contract of services
thus:
I strongly recommend that Mr. Palmera be given a contractual appointment covering the period from
January 1, 1987 to December 31, 1987, to provide legal basis for payment of salaries for services
rendered or during the period that he has been reporting for duty. After December 31, 1987,
management will decide whether or not to renew his contract. (Annex "D" to the Petition; Rollo, p. 41;
emphasis supplied)
It can be inferred from this statement that Palmera did not seek to be appointed as Technical Assistant to the Secretary. He was
not informed of the real objective of contract. He was made to understand that the contract was merely for the sake of formality,
to give some legal basis for his compensation for 1987.
The public respondents did not categorically deny the petitioner's allegation that he returned to work immediately after the lifting
of his first preventive suspension. Such conduct was definitely inconsistent with the imputation that he intended to surrender his
permanent office. In the old but still valid case of Santiago v. Agustin, 2 this Court said:
A public office may become vacant by abandonment. In order to constitute abandonment of office, it
must be total and under such circumstances as clearly to indicate an absolute relinquishment.
Temporary absence is not sufficient. There must be an intention, actual or imputed to abandon the
office. (Emphasis supplied)
The Commission itself has held that the contract of service entered into by the petitioner and DPWH officials was null and void
for being contrary to law and public policy.
A void or inexistent contract is one which has no force and effect from the very beginning, as if it had never been entered into,
and which cannot be validated either by time or by ratification. Hence, the subject contract cannot be used as basis for the claim
that the petitioner abandoned his post as Assistant Regional Director.
The public respondents further contend that the petitioner is guilty of laches because he sought to implement the order dated
November 16, 1987, only on November 18, 1991, or more than 4 years later. Consequently, he is deemed to have forfeited any
remedy to which he may have been entitled under the law.
The reasonableness of the period within which a claim for reinstatement may be filed is determined on a case-by-case basis.
There is no absolute rule on what constitutes laches or staleness of demand, which is to be determined according to the
particular circumstances of each case.
In the instant case, the petitioner's inaction was due to his reliance on the assurances made to him that he would be appointed
to another position. It is not disputed that he continued reporting for work in the Office of the Secretary even after learning that
somebody else had been appointed to replace him. Palmera could not have done so unless he was assured of his
reappointment. Such assurances were obviously made in recognition of the petitioner's right to reinstatement upon the lifting of
his preventive suspension.
These circumstances justify the application in this case of the following ruling laid down in Cristobal v. Melchor: 3
The doctrine of laches is an equitable principle applied to promote but never to defeat justice. Thus,
where laches is invoked against a plaintiff by reason of the latter's failure to come to court within the
statutory period provided in the law, the doctrine of laches will not be taken against him where the
defendant is shown to have promised from time to time to grant the relief sought for. Again, We have
jurisprudence that where a defendant or those claiming under him recognized or directly or impliedly
acknowledged existence of the right asserted by a plaintiff, such recognition may be invoked as a valid
excuse for a plaintiff's delay in seeking to enforce such right. In brief, it is indeed the better rule that
courts, under the principle of equity, will not be guided or bound strictly by the statute of limitations or
the doctrine of laches when to do so, manifest wrong and injustice would result. (Emphasis supplied)
In that case, the petitioner took nine years before filing suit for his reinstatement, also because of repeated assurances of his
reappointment, which never materialized.
It should also be noted that laches is not concerned merely with lapse of time, unlike prescription. While the latter deals with the
fact of delay, laches deals with the effect of unreasonable delay. To constitute laches, it is required that (1) the complainant must
have knowledge of the conduct of the defendant or of one under whom he claims, and (2) he must have been afforded an
opportunity to institute suit. The first requirement is lacking in this case. There was no formal communication to the petitioner
that he had already been dismissed from the service. The contract cannot be considered a notice of dismissal because it was
null and void and therefore produced no legal effect.
Section 24 (d) of P. D. 807 provides:
Any person who has been permanently appointed to a position in the career service and who has,
through no delinquency or misconduct, been separated therefrom may be reinstated to a position in
the same level for which he is qualified.
It follows that the petitioner should be immediately reinstated to his former position or appointed to another position of equivalent
rank and compensation. However, in view of his pending cases before the Ombudsman and the Sandiganbayan, back salaries
may not be paid to him at this time and until he is absolved of all the administrative and criminal charges against him.
WHEREFORE, judgment is hereby rendered declaring the petitioner's dismissal from the service to be illegal and ordering his
immediate reinstatement to his former position or his appointment to another position of equivalent rank, with payment of back
wages only if and when he is exonerated of the administrative and criminal charges filed against him. No costs.
SO ORDERED.
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 87687 December 26, 1989
ISABELO T. SABELLO, petitioner,

vs.
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.
GANCAYCO, J.:
In this petition filed by a non-lawyer by reason of alleged poverty, We are called upon to decide a unique issue of which shall be
given more importance the legal technicalities of the law or the fundamental principles of justice and fairness.
The facts are not in dispute, as follows:
Petitioner, was the Elementary School Principal of Talisay and also the Assistant Principal of the Talisay
Barangay High School of the Division of Gingoog City. The barangay high school was in deficit at that time due
to the fact that the students could hardly pay for their monthly tuition fees. Since at that time also, the President
of the Philippines who was earnestly campaining was giving aid in the amount of P 2,000.00 for each barrio,
the barrio council through proper resolutions alloted the amount of P 840.00 to cover up for the salaries of the
high school teachers, with the honest thought in mind that the barrio high school was a barrio project and as
such therefore, was entitled to its share of the RICD fund in question. The only part that the herein petitioner
played was his being authorized by the said barrio council to withdraw the above amount and which was
subsequently deposited in the City Treasurer's Office in the name of the Talisay Barrio High School. That was a
grave error on the part of the herein petitioner as it involves the very intricacies in the disbursement of
government funds and of its technicalities. Thus, the herein petitioner, together with the barrio captain, were
charged of the violation of Republic Act 3019, and both were convicted to suffer a sentence of one year and
disqualification to hold public office. The herein petitioner appealed his case to the Court of appeals, Manila.
The Court of appeals modified the decision by eliminating the subsidiary imprisonment in case of insolvency in
the payment of one-half of the amount being involved. The herein petitioner, being financially battered, could no
longer hire a lawyer to proceed to the highest court of the land.
Finally, the herein petitioner was granted an ABSOLUTE PARDON by the President of the Republic of the
Philippines, restoring him to 'full civil and political rights.' With this instrument on hand, the herein petitioner
applied for reinstatement to the government service, only to be reinstated to the wrong position of a mere
classroom teacher and not to his former position as Elementary School Principal I. 1
Petitioner now prays to this Court for the following relief:
1. (that he be) Reinstated to his former position as Elementary School Principal I;
2. His government services be made continuous since September 10, 1948 which is his
original appointment until the present time;
3. (that he be) Given his back salaries corresponding to the period from September 1, 1971 to
November 23,1982;
4. That all his service credits duly earned be restored;
5. And, that all other rights and privileges not mentioned herein shall also be granted.
(Petition, p. 2) 2
The Solicitor General comments that there is no justiciable controversy in this case because the issue involved is whether or not
petitioner merits reappointment to the position he held prior to his conviction that of Elementary Principal I. The Division of City
Schools, Gingoog City, Region X, Department of Education and Culture, did not act on petitioner's request. Hence, the present
petition.
We believe otherwise. There is here a justiciable controversy. Petitioner claims he must be restored to the same position he was
in before he was convicted on a mere technical error and for which he was given an absolute pardon.
This is not a hypothetical or abstract dispute. It is not academic or moot for, to our mind, there is a definite and concrete
controversy touching the legal relations of parties having adverse legal relations. This is a real and substantial controversy
admitting of specific relief through a court decree that is conclusive in character. The case does not call for a mere opinion or
advise, but for affirmative relief .
As a general rule, the question of whether or not petitioner should be reappointed to his former position is a matter of discretion
of the appointing authority, but under the circumstances of this case, if the petitioner had been unfairly deprived of' what is
rightfully his, the discretion is qualified by the requirements of giving justice to the petitioner. It is no longer a matter of discretion
on the part of the appointing power, but discretion tempered with fairness and justice.
As to the argument that the Department of Education, Culture and Sports cannot be sued, the only answer is that its officials can
be sued for alleged grave errors in their official acts. Again, We ignore technicality by considering this a suit against the officials
of this government agency.
Taking into consideration that this petition is filed by a non-lawyer, who claims that poverty denies him the services of a lawyer,
We also set aside the requirement of exhaustion of administrative remedies and resolved to go direct to the merits of the
petition.
In Monsanto vs. Factoran, Jr., 3 this Court held that the absolute disqualification from office or ineligibility from public office forms
part of the punishment prescribed under the penal code and that pardon frees the individual from all the penalties and legal
disabilities and restores him to all his civil rights. Although such pardon restores his eligibility to a public office it does not entitle
him to automatic reinstatement. He should apply for reappointment to said office.
In the present case after his absolute pardon, petitioner was reinstated to the service as a classroom teacher by the Department
of Education, Culture and Sports.
As there are no circumstances that would warrant the diminution in his rank, justice and equity dictate that he be returned to his
former position of Elementary School Principal I and not to that of a mere classroom teacher.
However, the Court cannot grant his prayer for backwages from September 1, 1971 to November 23, 1982 since
in Monsanto 4 this Court said he is not entitled to automatic reinstatement. Petitioner was lawfully separated from the
government service upon his conviction for an offense. Thus, although his reinstatement had been duly authorized, it did not
thereby entitle him to backwages. Such right is afforded only to those who have been illegally dismissed and were thus ordered
reinstated or to those otherwise acquitted of the charge against them.
In the same light, the Court cannot decree that his government service be made continuous from September 10, 1948 to the
present when it is not. At any rate when he reaches the compulsory age of retirement, he shall get the appropriate retirement
benefits as an Elementary School Principal I and not as a mere classroom teacher.
WHEREFORE, the petition is GRANTED in that the Secretary of the Department of Education, Culture and Sports and/or his
duly authorized representative is hereby directed to appoint petitioner to the position of Elementary School Principal I or it
equivalent, without pronouncement as to cost. This decision is immediately executory.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. L-19715 March 5, 1923
JAMES J. McCARTHY, plaintiff-appellant,

vs.
VICENTE ALDANESE, defendant-appellee.
Hartford Beaumont for appellant.

Attorney-General Villa-Real for appellee.
OSTRAND, J.:
This is an action in replevin against the Insular Collector of Customs for the recovery of seven cases of cotton textiles alleged to
have been imported into the Philippine Islands on the Steamship City of Lincoln on or about October 23, 1920, or for the value of
said textiles if physical delivery cannot be made. The trial court rendered judgment in favor of the defendant absolving him from
the complaint, from which judgment the plaintiff appeals to this court.
The evidence shows that the American Undergarment Corporation held a bill of lading for thirty cases of textiles shipped from
New York on the City of Lincoln arriving in Manila in October, 1920. Only twenty-three cases were delivered to the corporation
by the Insular Collector of Customs and there is some dispute as to whether the other seven cases were discharged from the
ship and came into the hands of the Customs authorities. The court below found, however, that all of the thirty cases were
landed and we think the preponderance of the evidence fully sustains this finding. As soon as the shortage was discovered a
careful, but fruitless, search was made for the missing cases and it is sufficiently established that they were not then, and are not
now, in the possession of the defendant.
The goods were insured with the Union Insurance Society which paid the American Undergarment Corporation the full amount
of the loss and having thus become subrogated to the rights of the American Undergarment Corporation, assigned such rights to
James J. McCarthy, the plaintiff herein.
The Insular Collector of Customs is personally liable if he delivers merchandise in course of importation to a person other than
the holder of the bill of lading therefor (Administrative Code, sec. 1316). He is, of course, also liable for his own personal
misfeasance or malfeasance, but in the absence thereof he is not legally responsible for the safe-keeping of merchandise stored
in any customs or bounded warehouse, nor is he personally liable for torts of his subordinates.
Mechem in his work on Public Offices and Officers, section 789, says:
It is well settled as a general rule that public officers of the government, in the performance of their public functions, are
not liable to third persons, either for the misfeasances or positive wrongs, or for the nonfeasances, negligences, or
omissions of duty of their official subordinates.
This immunity rests upon obvious consideration of public policy, the necessities of the public service and the
perplexities and embarrassments of a contrary doctrine.
And in section 793 he says:
So a collector of customs is not personally liable for a tort committed by his subordinates, there being no evidence to
connect the collector personally with the wrong, or that the subordinates were not competent or were not properly
selected for their positions.
In the case of Robertson vs. Sichel (127 U. S., 507, 514-516), speaking of the liability of the Collector of Customs of New York
for the burning of a trunk in the customs' premises through the negligence of a customs' employee, the court said:
We are of opinion that there was error in the charge of the court, and that the defendant was not liable for the wrong, if
any, committed by his subordinates, on the facts of this case. There is nothing in the evidence to connect the defendant
personally with any such wrong. No evidence was given that the officers in question were not competent, or were not
properly selected for their respective positions. The subordinate who was guilty of the wrong, if any, would undoubtedly
be liable personally for the tort, but to permit a recovery against the collector, on the facts of this case, would be to
establish a principle which would paralyze the public service. Competent persons could not be found to fill positions of
the kind, if they knew they would be held liable for all the torts and wrongs committed by a large body of subordinates,
in the discharge of duties which it would be utterly impossible for the superior officer to discharge in person.
This principle is well established by authority. It is not affected by the fact that a statutory action is given to an importer,
to recover back, in certain cases, an excess of duties paid under protest; nor by the fact that a superior officer may be
held liable for unlawful fees exacted by his subordinate, where lawful fees are prescribed by statute, and where such
fees are given by law to the superior, or for the act of a deputy performed in the ordinary line of his official duty as
prescribed by law. The government itself is not responsible for the misfeasances or wrongs, or negligences, or
omissions of duty of the subordinate officers or agents employed in the public service; for it does not undertake to
guarantee to any person the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its
operations, in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests.
(Story on Agency, sec. 319; Seymour vs. Van Slyck, 8 Wend., 403, 422; U. S. vs. Kirkpatrick, 9 Wheat., 720, 735;
Gibbons vs. U.S., 8 Wall., 269; Whiteside vs. U. S., 93 U. S., 247, 257; Hart vs. U. S., 95 U. S., 316, 318; Moffat vs. U.
S., 112 U. S., 24, 31; Schmalz vs. U. S., 4 Ct. Cl., 142.)
The head of a department, or other superior functionary, is not in a different position. A public officer or agent is not
responsible for the misfeasances or positive wrongs, or for the nonfeasances, or negligence, or omission of duty, of the
subagents or servants or other persons properly employed by of under him, in the discharge of his official duties. (Story
on Agency, sec. 319.)
It is not intimated the defendant has been guilty of personal misfeasance or malfeasance, but the plaintiff contends that the
seven missing cases having disappeared after coming into the hands of the Customs authorities and their disappearance not
having been satisfactorily explained, it must be presumed that they have been misdelivered.
This contention is clearly untenable. The presumption is that official duty has been regularly performed and we cannot presume
that the Collector of Customs has delivered the merchandise to a person not entitled thereto. That the goods have been
misdelivered is therefore an affirmative allegation, the proof of which is incumbent upon the party by whom it is made. If a
misdelivery has been made, proof thereof should not be difficult to obtain; the records of the Customs House are available for
that purpose.
The judgment appealed from is therefore affirmed, with the costs against the appellant. So ordered.
SPECIAL SECOND DIVISION
G.R. No. 154499 February 27, 2004
ALBERTO V. REYES, WILFREDO B. DOMO-ONG and HERMINIO C. PRINCIPIO, petitioners

vs.
RURAL BANK OF SAN MIGUEL (BULACAN), INC., represented by HILARIO P. SORIANO, President and Principal
Stockholder, respondent.
RESOLUTION
Tinga, J.:
This deals with the Motion for Reconsideration of petitioners Alberto V. Reyes and Wilfredo B. Domo-ong, both Bangko Sentral
ng Pilipinas (BSP) officials,1 and the Motion for Partial Reconsideration of respondent Rural Bank of San Miguel (Bulacan), Inc.
In the Decision2 of March 14, 2003, this Court found Deputy Governor Reyes and Director Domo-ong liable for violation of the
"standards of professionalism" prescribed by the Code of Conduct and Ethical Standards for Public Officials and Employees
(Republic Act No. 6713) in that they used the distressed financial condition of respondent Rural Bank of San Miguel (Bulacan),
Inc. (RBSMI) as the subject of a case study in one of the BSP seminars and did the "brokering" of the sale of RBSMI. The Court
modified the Decision of the Court of Appeals in CA-GR SP No. 601843 by reducing the penalty imposed by the appellate court
from a fine equivalent to six months’ salary to a fine of two months’ salary for Reyes and one month salary for Domo-ong.
In the Decision, the Court exonerated petitioner Herminio C. Principio4 of the administrative charges. The exoneration is the
subject of RBSMI’s Motion For Partial Reconsideration.
The Motion for Reconsideration of Reyes and Domo-ong is anchored on the following grounds: (1) it was not under their
auspices that the seminar which used training materials containing two case studies on RBSMI’s financial distress was
conducted but under that of another department and other officials of BSP; and, (2) they did not do any act which constituted
"brokering" of the sale of RBSMI or deviated from the standards of professionalism.
A brief revisit of the operative milieu is warranted to gain the needed perspective.
In a letter dated May 19, 1999, addressed to then BSP Governor Singson, RBSMI charged the petitioners with violation
of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees). The Monetary Board
(MB) of the BSP created an Ad Hoc Committee to investigate the matter.
The ensuing investigation disclosed that sometime in September 1996, RBSMI, which had a history of major
violations/exceptions dating back to 1995, underwent periodic examination by the BSP. The examination team headed by
Principio noted 20 serious exceptions/violations and deficiencies of RBSMI.5
Through Resolution No. 96, the MB required RBSMI to submit within 15 days a written explanation with respect to the findings of
the examiner. It also directed the Department of Rural Banks (DRB), to verify, monitor and report to the Deputy Governor,
Supervision and Examination Sector (SES) on the findings/exceptions noted, until the same shall have been corrected.
As directed by the MB, another examination team conducted a special examination on RBSMI. RBSMI President Hilario Soriano
claimed that he was pressured into issuing a memorandum to the bank employees authorizing the team to review the bank’s
accounting and internal control system.
Soriano also alleged that sometime in March 1997, Reyes started urging him to consider selling the bank. He specified that on
May 28, 1997, Reyes introduced him through telephone to Mr. Exequiel Villacorta, President and Chief Executive Officer of the
TA Bank. They agreed to meet on the following day. In his Affidavit,6 Villacorta confirmed that he and Soriano indeed met but the
meeting never got past the exploratory stage since he (Villacorta) immediately expressed disinterest because Soriano wanted to
sell all his equity shares while he was merely contemplating a possible buy-in.
Soriano further alleged that when the talks with Villacorta failed, Reyes asked him whether he wanted to meet another buyer, to
which he answered in the affirmative. Thereafter, Reyes introduced him by telephone to Benjamin P. Castillo of the Export and
Industry Bank (EIB), whom he met on June 26, 1997. No negotiation took place because Soriano desired a total sale while EIB
merely desired a joint venture arrangement or a buy-in to allow EIB to gain control of RBSMI.
Meanwhile, on June 13, 1997, the MB approved Resolution No. 7247 ordering RBSMI to correct the major exceptions noted
within 30 days from receipt of the advice, and to remit to the BSP the amount of ₱2,538,483.00 as fines and penalties for
incurring deficiencies in reserves against deposit liabilities.
On July 21, 1997, Soriano submitted RBSMI’s answers to the BSP exceptions/findings mentioned. He stated that "the actions
taken or to be taken by the bank (RBSMI) were deliberated and ratified by the Board of Directors in its regular meeting held on
July 9, 1997." Among the board approved actions was the bank’s request addressed to Domo-ong for BSP "to debit the demand
deposit of the bank in the amount of ₱2,538,483.00" representing the payment of fines and penalties.
More than a year after, however, the RBSMI asked for a reconsideration of MB Resolution No. 724 insofar as the imposition of
fine amounting to ₱2,538,483.00. On January 21, 1999, the MB adopted Resolution No. 71,8 authorizing the conditional reversal
of sixty percent (60%) of the penalty pending resolution of the dispute on the findings on reserve deficiency. Subsequently, on
April 7, 1999, the MB approved the interim reversal of the entire amount of the penalty "pending the outcome of the study on the
legal and factual basis for the imposition of the penalty."
The above incidents, particularly the alleged "brokering" by Reyes and the petitioners’ "unsupported" recommendation to impose
a penalty of ₱2,538,483.00 for legal reserve deficiency, prompted the respondent to file the letter-complaint charging the
petitioners with "unprofessionalism."
The Motion for Reconsideration bid of Reyes and Domo-ong is meritorious.
In pinning liability on Reyes and Domo-ong for the seminar which used the rural bank as a case study, the court made this
ratiocination, viz:
"(W)hile there was indeed no evidence showing that either petitioner Reyes or petitioner Domo-ong distributed or used the
materials, the very fact that the seminar was conducted under their auspices is enough to make them liable to a certain extent.
Petitioner Reyes, as Head of the BSP Supervision and Examination Sector, and petitioner Domo-ong, as Director of the BSP
Department of Rural Banks, should have exercised their power of control and supervision so that the incident could have
been prevented or at the very least remedied." (Emphasis supplied)
Plainly, conclusion on petitioners’ culpability is grounded, not on an established fact but on a mere inference that the seminar
was conducted under their auspices. Indeed, the pronouncement on the petitioners’ role is evidently conjectural and evaluation
of the extent of their responsibility admittedly uncertain.
It is conceded that there was no evidence that the seminar was conducted under petitioners’ patronage. And it was assumed, as
indeed there was absolutely paucity of proof, that they exercised supervision and control over the persons responsible in
organizing the seminar. On the contrary, as shown in the Motion For Reconsideration, it was the Bangko Sentral ng Pilipinas
Institute (BSPI), an office separate and independent from the SES which is directly under the control and supervision of another
Deputy Governor, that for the Resource Management Sector (RMS)9 which is charged with conducting seminars and lectures
for the BSP, including the seminar involved in this case.
In its Comment,10 RBSMI argues that since information on the state of its finances found its way as a training material of RMS,
the event could have transpired only because the SES permitted it. Even if the subordinates of petitioners were the source of
information, RBSMI further claims in ostensible reference to the principle of command responsibility, petitioners could be held
liable for negligence.
It is noteworthy again that petitioners’ alleged role in the disclosure of information is not anchored on any concrete piece of
evidence. That explains the RBSMI’s effort to cast liability vicariously on the petitioners by a superficial resort to the principle of
command responsibility which this Court did not reject. But neither the principle itself which is an accepted notion in military or
police structural dynamics or its counterpart of respondent superior in the law on quasi-delicts11 would be relevant in this case,
involving as it does the actual performance in office of the petitioners and given the fact that petitioners are high ranking officers
of the country’s central monetary authority. Indeed, as such officers, petitioners cannot be expected to monitor the activities of
their subalterns. In Arias v. Sandiganbayan,12 this Court held that all heads of offices have to rely to a reasonable extent on the
good faith of their subordinates. The case specifically involved the liability of the head of office in the preparation of bids,
purchase of supplies and contract negotiations done by his subordinates. In the same fashion, petitioners in this case owing to
their high ranks cannot be expected to acquaint themselves with such minutiae as the flow of files and documents which leave
their desks. Myriad details such as those are, by office practice, left to subalterns and minor employees. Delegation of function is
part of sound management.
From another perspective, the negligence of the subordinate cannot be ascribed to his superior in the absence of evidence of
the latter’s own negligence. Indeed, the negligence of the subordinate is not tantamount to negligence of the superior official so
the Court ruled in a case13 where the mandated responsibilities of the superior do not include actual monitoring of projects. In
another case,14 this Court rejected the principle of command responsibility although the case involved a provincial constabulary
commander, aptly noting that there was neither allegation nor proof that he had been in any way guilty of fault or negligence in
connection with the unlawful raid and arrest effected by his subordinates.
The immunity of public officers from liability for the non-feasances, negligence or omissions of duty of their official subordinates
and even for the latter’s misfeasances or positive wrongs rests, according to Mechem, "upon obvious considerations of public
policy, the necessities of the public service and the perplexities and embarrassments of a contrary doctrine."15 These official
subordinates, he notes further, are themselves public officers though of an inferior grade, and therefore directly liable in the
cases in which any public officer is liable, for their own misdeeds or defaults.16
Significantly, Mechem’s disquisition provides the mooring of the Administrative Code of 1987 which provides that a head of a
department or a superior officer shall not be civilly liable for the wrongful acts, omissions of duty, negligence, or misfeasance of
his subordinates, unless he has actually authorized by written order the specific act or misconduct complained of.17
Now, the label of unprofessionalism bestowed by the Court on the petitioners at the instance of RBSMI.
In the assailed Decision, the Court categorized Reyes’ telephone introduction of officials of other banks to RBSMI’s President in
connection with the latter’s expressed desire to sell the bank as "brokering" which in turn constitutes, according to the Court,
violation of the standards of professionalism. The standards are set forth in Section 4 (A) (b) of Republic Act 6713, as follows:
Sec. 4. Norms of Conduct of Public Officials and Employees. — (A) Every public official and employee shall observe the
following as standards of personal conduct in the discharge and execution of official duties:
...
(b) Professionalism. — Public officials and employees shall perform and discharge their duties with the highest degree of
excellence, professionalism, intelligence and skill. They shall enter public service with utmost devotion and dedication to duty.
They shall endeavor to discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.
The Court equates "brokering" with unprofessionalism. According to Webster’s Third New International
Dictionary, "professionalism" means "the conduct, aims, or qualities that characterize or mark a profession." Any standard
thesaurus defines a "professional" as a person who engages in an activity with great competence. Indeed, to call a person a
professional is to describe him as competent, efficient, experienced, proficient or polished.
The crucial question, therefore, is whether Reyes conducted himself in an unprofessional manner in doing the acts imputed to
him.
The Court rules in the negative.
In the first place, the acts of Reyes do not constitute "brokering." Case law18 defines a "broker" as "one who is engaged, for
others, on a commission, negotiating contracts relative to property with the custody of which he has no concern; the negotiator
between other parties, never acting in his own name but in the name of those who employed him. . . . a broker is one whose
occupation is to bring the parties together, in matters of trade, commerce or navigation." According to Bouvier’s Law Dictionary,
"brokerage" refers to "the trade or occupation of a broker; the commissions paid to a broker for his services," while "brokers" are
"those who are engaged for others on the negotiation of contracts relative to property, with the custody of which they have no
concern."19
Thus, the word "brokering" clearly indicates the performance of certain acts for monetary consideration or compensation. To
give it another definition such as that imputed by RBSMI to the acts of Reyes is to distort the accepted jurisprudential meaning of
the term.
From the evidence, all that Reyes did was to introduce RBSMI’s President to the President of TA Bank and EIB. Nothing more.
There was not even a hint that he was motivated by monetary consideration or swayed by any personal interest in doing what he
did.
On his part, Soriano who is RBSMI’s President himself admitted that the talks with Villacorta and Castillo never got past the
exploratory stage because the two wanted a buy-in while he was for a total sell-out. This is an indelible indication that Reyes
was not personally involved in the transaction. If he were, he would at least have an inkling of the plans of Villacorta and Castillo;
otherwise, he would not have wasted his time introducing them to Soriano.
Indeed, RBSMI miserably failed to establish that Reyes had breached the standard of professional conduct required of a public
servant. It appears to the Court that in keeping with the standards of professionalism and heeding the mandate of his position,
he made the telephone introductions for no other purpose but to pave the way for a possible consolidation or merger of RBSMI
with interested banks. As this Court found in its Decision, it is indeed the policy of the BSP to promote mergers and
consolidations by providing incentives to banks that would undergo such corporate combinations.20 To effectively implement the
policy, it was necessary that the banks be advised and assisted by a person knowledgeable about the transactions like Reyes.
The benefits which may ultimately arise out of any preliminary facilitation step such as what Reyes undertook will not accrue to
the facilitator but to the parties to the transaction themselves and, of course, the institution whose policy initiative is being carried
out.
All told, there is neither legal nor factual support for holding Reyes and Domo-ong liable.
As to the motion for partial reconsideration filed by RBSMI, it is argued that Principio should be administratively penalized for his
undue haste in submitting his report to the MB, in making an unsupported recommendation for imposition of penalties for legal
reserve deficiencies, and for taking charge of the examinations of RBSMI three consecutive times. RBSMI’s arguments are not
new, they having been previously presented to and squarely ruled upon by the Court.
In closing, it cannot be overemphasized that the BSP is an independent body corporate bestowed under its charter 21 with fiscal
and administrative autonomy. As such, its officials should be granted a certain degree of flexibility in the performance of their
duties and provided insulation from interference and vexatious suits, especially when moves of the kind are resorted to as
counterfoil to the exercise of their regulatory mandate. Elsewise, the institutional independence and autonomy of the BSP as the
central mandatory authority would be rendered illusory.
IN VIEW OF THE FOREGOING, the Court RESOLVES to GRANT the Motion for Reconsideration of the petitioners Deputy
Governor Alberto V. Reyes and Director Wilfredo B. Domo-ong. The Decision dated March 14, 2003 is SET ASIDE and another
entered, DISMISSING the administrative complaint and EXONERATING all the petitioners. The Motion for Partial
Reconsideration of the respondent Rural Bank of San Miguel (Bulacan), Inc. is DENIED.
SO ORDERED.
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 110544 October 17, 1995
REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO FABURADA, (former
Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL LIM, NICANOR R.
AGOSTO, ERENIETA K. MENDOZA MAXIMINO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES,
and FORMER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA
ESTRELLANES, respondents.
KAPUNAN, J.:
Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set aside
the resolution of the Sandiganbayan dated 17 February 1992 and its orders dated 19 August 1992 and 13 May 1993 in Criminal
Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for suspension
of their arraignment.
The present controversy arose from the following antecedents:
On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were designated as industrial labor
sectoral representative and agricultural labor sectoral representative respectively, for the Sangguniang Bayan of Jimalalud,
Province of Negros Oriental by then Secretary Luis T. Santos of the Department of Local Government. Private respondents
Binaohan and Estrellanes took their oath of office on 16 February 1989 and 17 February 1989, respectively.
Subsequently, petitioners filed an undated petition with the Office of the President for review and recall of said designations. The
latter, however, in a letter dated 20 March 1989, denied the petition and enjoined Mayor Reynaldo Tuanda to recognize private
respondents as sectoral representatives.
On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court of Negros Oriental, Branch 35,
docketed as Special Civil Action No. 9661, for recognition as members of the Sangguniang Bayan. It was dismissed on 23 July
1991.
Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of Dumaguete City to declare null and void
the designations of private respondents as sectoral representatives, docketed as Civil Case No. 9955 entitled "Reynaldo
Tuanda, et al. versus Secretary of the Department of Local Government, et al."
On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal Case No. 16936 entitled "People of
the Philippines versus Reynaldo Tuanda, et al." charging petitioners thus:
INFORMATION
The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses REYNALDO V.
TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K.
MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and SANTOS A. VILLANUEVA of Violation of
Section 3(e) of R.A. No. 3019, as amended, committed as follows:
That during the period from February 1989 to February 1991 and subsequent thereto, in the
Municipality of Jimalalud, Negros Oriental, and within the jurisdiction of this Honorable Court,
accused, all public officers, Mayor REYNALDO V. TUANDA, Vice-Mayor HERMENEGILDO
G. FABURADA, Sangguniang Members MANUEL LIM, NICANOR P. AGOSTO, ERENIETA
K. MENDOZA, MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D.
ESTRELLANES and SANTOS A. VILLANUEVA while in the performance of their official
functions and taking advantage of their public positions, with evident bad faith, manifest
partiality, and conspiring and confederating with each other did, then and there, wilfully and
unlawfully cause undue injury to Sectoral Members Bartolome M. Binaohan and Delia T.
Estrellanes by refusing to pay despite demand the amount of NINETY FIVE THOUSAND
THREE HUNDRED FIFTY PESOS (P95,350.00) and ONE HUNDRED EIGHT THOUSAND
NINE HUNDRED PESOS (P108,900.00) representing respectively their per diems, salaries
and other privileges and benefits, and such undue injury continuing to the present to the
prejudice and damage of Bartolome Binaohan and Delia Estrellanes.
CONTRARY TO LAW. 1
On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the proceedings in Criminal Case
No. 16936 on the ground that a prejudicial question exists in Civil Case No. 9955 pending before the Regional Trial Court of
Dumaguete City.2
On 16 January 1992, the Regional Trial Court rendered a decision declaring null and void ab initio the designations issued by
the Department of Local Government to the private respondents as sectoral representatives for having been done in violation of
Section 146 (2) of B.P. Blg. 337, otherwise known as the Local Government Code.3
The trial court expounded thus:
The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R. No. 84663, along with
7 companion cases of similar import, (G.R. Nos. 05012, 87601, 87602, 87792, 87935, 88072, and 90205) all
promulgated on August 24, 1990, ruled that:
B.P. Blg. 337 explicitly required that before the President (or the Secretary of the Department
of Local Government) may appoint members of the local legislative bodies to represent the
Industrial and Agricultural Labor Sectors, there must be a determination to be made by the
Sanggunian itself that the said sectors are of sufficient number in the city or municipality to
warrant representation after consultation with associations and persons belonging to the
sector concerned.
The Supreme Court further ruled —
For that matter, the Implementing Rules and Regulations of the Local Government Code even
prescribe the time and manner by which such determination is to be conducted by the
Sanggunian.
Consequently, in cases where the Sanggunian concerned has not yet determined that the
Industrial and Agricultural Labor Sectors in their particular city or municipality are of sufficient
number to warrant representation, there will absolutely be no basis for the
designation/appointments.
In the process of such inquiry as to the sufficiency in number of the sector concerned to warrant representation,
the Sanggunian is enjoined by law (B.P. Blg. 337) to consult with associations and persons belonging to the
sector concerned. Consultation with the sector concerned is made a pre-requisite. This is so considering that
those who belong to the said sector are the ones primarily interested in being represented in the Sanggunian.
In the same aforecited case, the Supreme Court considers such prior determination by the Sanggunian itself
(not by any other person or body) as a condition sine qua non to a valid appointment or designation.
Since in the present case, there was total absence of the required prior determination by the Sangguniang
Bayan of Jimalalud, this Court cannot help but declare the designations of private defendants as sectoral
representatives null and void.
This verdict is not without precedence. In several similar cases, the Supreme Court invariably nullified the
designations where the requirements of Sec. 146 (2), B.P. Blg. 337 were not complied with. Just to cite one
case, the Supreme Court ruled:
There is no certification from the Sangguniang Bayan of Valenzuela that the sectors
concerned are of sufficient number to warrant representation and there was no consultation
whatsoever with the associations and persons belonging to the Industrial and Agricultural
Labor Sectors. Therefore, the appointment of private respondents Romeo F. Bularan and
Rafael Cortez are null and void (Romeo Llanado, et al. v. Hon. Luis Santos, et al., G.R. No.
86394, August 24, 1990).4
Private respondents appealed the aforestated decision to the Court of Appeals, docketed as CA-G.R. CV No. 36769, where the
same is currently pending resolution.
Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the motion for suspension of
proceedings filed by petitioners. Said respondent Sandiganbayan:
Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros Oriental, it appears,
nevertheless, that the private complainants have been rendering services on the basis of their respective
appointments as sectoral members of the Sangguniang Bayan of the Municipality of Jimalalud, Negros
Oriental; and that their said appointments enjoy the presumption of regularity. Having rendered such services,
the private complainants are entitled to the salaries attached to their office. Even assuming arguendo that the
said Regional Trial Court shall later decide that the said appointments of the private complainants are null and
void, still the private complainants are entitled to their salaries and compensation for service they have actually
rendered, for the reason that before such judicial declaration of nullity, the private complainants are considered
at least de facto public officers acting as such on the basis of apparently valid appointments issued by
competent authorities. In other words, regardless of the decision that may be rendered in Civil Case
No. 9955, the private complainants are entitled to their withheld salaries for the services they have actually
rendered as sectoral representatives of the said Sangguniang Bayan. Hence, the decision that may be
rendered by the Regional Trial Court in Civil Case No. 9955 would not be determinative of the innocence or
guilt of the accused.
WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of Prejudicial Question filed by
the accused through counsel, is hereby DENIED for lack of merit.
SO ORDERED.5
Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the decision promulgated by the trial
court nullifying the appointments of private respondents but it was, likewise, denied in an order issued by respondent
Sandiganbayan on 19 August 1992 on the justification that the grounds stated in the said motion were a mere rehash of
petitioners' original motion to hold the case in abeyance.6 The dispositive portion of its order reads as follows:
WHEREFORE, in view of the foregoing, the arraignment of the accused which was scheduled today is
cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada, Nicanor P. Agosto, Erenieta K. Mendoza,
Hacubina V. Serillo and Iluminado Estrellanes are, however, hereby ordered to show cause in writing within ten
(10) days from service hereof why they should not be cited for contempt of court for their failure to appear in
court today for arraignment.
In case of an adverse resolution on the motion to quash which is to be filed by the counsel for the defense, set
this case for arraignment, pre-trial and trial on January 4 & 5, 1993, on all dates the trial to start at 8:30 o'clock
in the morning.
SO ORDERED.7
On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents pending the issuance of
an extended resolution.8
No such resolution, however, was issued and in its assailed order dated 13 May 1992, respondent Sandiganbayan set the
arraignment of petitioners on 30 June 1993. The dispositive portion of the order reads:
WHEREFORE, considering the absence of the accused from the scheduled hearing today which We deem to
be excusable, reset this case for arraignment on June 30, 1993 and for trial on the merits on June 30 and July
1 and 2, 1993, on all dates the trial to start at 8:30 o'clock in the morning.
Give proper notice to the accused and principal counsel, Atty. Alfonso Briones. Considering that the accused
come all the way from Himalalud, Negros Oriental, no postponement will be allowed.
SO ORDERED.9
Hence, this special civil action for certiorari and prohibition where petitioners attribute to respondent Sandiganbayan the
following errors:
A. The Respondent Court committed grave abuse of discretion in denying petitioners' motions for the
suspension of the proceedings in Criminal Case No. 16936 in spite of the pendency of a prejudicial issue
before the Court of Appeals in CA-G.R. CV No. 36769;
B. The Respondent Court acted without or in excess of jurisdiction in refusing to suspend the proceedings that
would entail a retrial and rehearing by it of the basic issue involved, i.e., the validity of the appointments of
private respondents and their entitlement to compensation which is already pending resolution by the Court of
Appeals in C.A. G.R. CV No. 36769; and
C. The Respondent Court committed grave abuse of discretion and/or acted without or in excess of jurisdiction
in effectively allowing petitioners to be prosecuted under two alternative theories that private respondents
are de jure and/or de facto officers in violation of petitioners' right to due process.10
In sum, the only issue in the case at bench is whether or not the legality or validity of private respondents' designation as
sectoral representatives which is pending resolution in CA-G.R. No. 36769 is a prejudicial question justifying suspension of the
proceedings in the criminal case against petitioners.
A prejudicial question is one that must be decided before any criminal prosecution may be instituted or before it may proceed
(see Art. 36, Civil Code) because a decision on that point is vital to the eventual judgment in the criminal case. Thus, the
resolution of the prejudicial question is a logical antecedent of the issues involved in said criminal case. 11
A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue
involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the
case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. 12 It is a
question based on a fact distinct and separate from "the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts
intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or
issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. It comes into play
generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which
must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is
resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case."13
The rationale behind the principle of prejudicial question is to avoid two conflicting decisions.14 It has two essential elements:
(a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and
(b) the resolution of such issue determines whether or not the criminal action may proceed. 15
Applying the foregoing principles to the case at bench, we find that the issue in the civil case, CA-G.R. CV No. 36769,
constitutes a valid prejudicial question to warrant suspension of the arraignment and further proceedings in the criminal case
against petitioners.
All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no doubt that the facts and
issues involved in the civil action (No. 36769) and the criminal case (No. 16936) are closely related. The filing of the criminal
case was premised on petitioners' alleged partiality and evident bad faith in not paying private respondents' salaries and per
diems as sectoral representatives, while the civil action was instituted precisely to resolve whether or not the designations of
private respondents as sectoral representatives were made in accordance with law.
More importantly, ,the resolution of the civil case will certainly determine if there will still be any reason to proceed with the
criminal action.
Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA 3019, sec, 3[e]) due to their refusal,
allegedly in bad faith and with manifest partiality, to pay private respondents' salaries as sectoral representatives. This refusal,
however, was anchored on petitioners' assertion that said designations were made in violation of the Local Government Code
(B.P. Blg. 337) and thus, were null and void. Therefore, should the Court of Appeals uphold the trial court's decision declaring
null and void private respondents' designations as sectoral representatives for failure to comply with the provisions of the Local
Government Code (B.P. Blg. 337, sec. 146[2]), the charges against petitioners would no longer, so to speak, have a leg to stand
on. Petitioners cannot be accused of bad faith and partiality there being in the first place no obligation on their part to pay private
respondents' claims. Private respondents do not have any legal right to demand salaries, per diems and other benefits. In other
words, the Court of Appeals' resolution of the issues raised in the civil action will ultimately determine whether or not there is
basis to proceed with the criminal case.
Private respondents insist that even if their designations are nullified, they are entitled to compensation for actual services
rendered.16 We disagree. As found by the trial court and as borne out by the records, from the start, private respondents'
designations as sectoral representatives have been challenged by petitioners. They began with a petition filed with the Office of
the President copies of which were received by private respondents on 26 February 1989, barely eight (8) days after they took
their oath of office.17 Hence, private respondents' claim that they have actually rendered services as sectoral representatives has
not been established.
Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private respondents' designations
are finally declared invalid, they may still be considered de facto public officers entitled to compensation for services actually
rendered.
The conditions and elements of de facto officership are the following:
1) There must be a de jure office;
2) There must be color of right or general acquiescence by the public; and
3) There must be actual physical possession of the office in good faith.18
One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de facto officer where
there is no de jure office, although there may be a de facto officer in a de jure office.19
WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13 May 1993 of respondent
Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE. Respondent Sandiganbayan is enjoined from proceeding
with the arraignment and trial of petitioners in Criminal Case No. 16936 pending final resolution of CA-G.R. CV No. 36769.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. L-23258 July 1, 1967
ROBERTO R. MONROY, petitioner,

vs.
HON. COURT OF APPEALS and FELIPE DEL ROSARIO, respondent.
E. M. Fernando, E. Quisumbing-Fernando and Norberto Quisumbing for petitioner.

Sycip, Salazar, Luna and Associates for respondents.
BENGZON, J.P., J.:
Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961, his certificate of
candidacy as representative of the first district of Rizal in the forthcoming elections was filed with the Commission on Elections.
Three days later, or on September 18, 1961, petitioner filed a letter withdrawing said certificate of candidacy. The Commission
on Elections, per resolution,1 approved the withdrawal. But on September 21, 1961, respondent Felipe del Rosario, then the
vice-mayor of Navotas, took his oath of office as municipal mayor on the theory that petitioner had forfeited the said office upon
his filing of the certificate of candidacy in question.
Upon these facts, the Court of First Instance of Rizal, held in the suit for injunction instituted by petitioner against respondents
that (a) the former had ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was filed on September 15, 1961;
(b) respondent del Rosario became municipal mayor upon his having assumed office as such on September 21, 1961; (c)
petitioner must reimburse, as actual damages, the salaries to which respondent was entitled as Mayor from September 21, 1961
up to the time he can reassume said office; and (d) petitioner must pay respondent P1,000.00 as moral damages.1äwphï1.ñët
This judgment was, on appeal by petitioner to the Court of Appeals, affirmed in toto except for the award of moral damages
which was eliminated. The same Court reaffirmed its stand upon petitioner's filing a motion to reconsider. Hence, this petition
for certiorari to review the ruling of the Court of Appeals.
Petitioner first argues that both the lower court and the Court of Appeals had done what they had no jurisdiction to do — review
a resolution of the Commission on Elections. The submission is without merit.
The Constitution empowers the Commission on Elections to
x x x decide, save those involving the right to vote, all administrative questions affecting elections, including the
determination of the number and location of polling places, and the appointment of election inspectors and of other
election officials x x x . 2 (Emphasis supplied)
And the decisions, orders and rulings of the Commission on these administrative questions are reviewable only by the Supreme
Court.3 Since the powers of the Commission are limited to matters connected with the "conduct of elections," necessarily its
adjudicatory or quasi-judicial powers are likewise limited to controversies connected with the "conduct of elections." This phrase
covers all the administrative process of preparing and operating the election machinery so that the people could exercise their
right to vote at the given time.4 All questions and controversies that may arise therefrom are to be resolved exclusively by the
Commission, subject to review only by the Supreme Court.
However, in this case there appears to be no decision, order or ruling of the Commission on any administrative question or
controversy. There was no dispute before the Commission. Respondent never contested the filing of petitioner's certificate of
candidacy. Neither has he disputed before that body the withdrawal thereof. And even if there was a controversy before the
Commission, the same did not and could not possibly have anything to do with the conduct of elections. What the parties are
actually controverting is whether or not petitioner was still the municipal mayor after September 15, 1961. This purely legal
dispute has absolutely no bearing or effect on the conduct of the elections for the seat of Congressman for the first district of
Rizal. The election can go on irrespective of whether petitioner is considered resigned from his position of municipal mayor or
not. The only interest and for that matter, jurisdiction, of the Commission on Elections in this regard is to know who are the
running candidates for the forthcoming elections, for that affects the conduct of election. So when petitioner withdrew the
certificate announcing his candidacy for Congressman, as far as the Commission could be concerned, petitioner was no longer
interested in running for that seat. The matter of his having forfeited his present position and the possible legal effect thereon by
the withdrawal of his certificate was completely out of the picture. Hence, that purely legal question properly fell within the
cognizance of the courts.
Now the withdrawal of his certificate of candidacy did not restore petitioner to his former position. Sec. 27 of the Rev. Election
Code providing that —
Any elective provincial, municipal or city official running for an office, other then the one which he is actually holding,
shall be considered resigned from his office from the moment of the filing of his certificate of candidacy,"
makes the forfeiture automatic and permanently effective upon the filing of the certificate of for another office. Only
the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and nothing save a new
election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes,
in Castro v. Gatuslao, 98 Phil, 94, 196:
x x x The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken
into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable
since the vacating is expressly made as of the moment of the filing of the certificate of candidacy x x x . (Emphasis
supplied)
Petitioner's contention that the certificate of candidacy was filed without his knowledge and consent and, hence, the
Commission's approval of its withdrawal invalidated such certificate for all legal purposes, is untenable. It nowhere appears that
the Commission's resolution expressly invalidated the certificate. The withdrawal of a certificate of candidacy does not
necessarily render the certificate void ab initio. Once filed, the permanent legal effects produced thereby remain even if the
certificate itself be subsequently withdrawn. Moreover, both the trial court and the Court of Appeals expressly found as a
fact that the certificate in question was filed with petitioner's knowledge and consent. And since the nature of the remedy taken
by petitioner before Us would allow a discussion of purely legal questions only, such fact is deemed conceded. 5
Petitioner would next maintain that respondent Court of Appeals likewise erred in affirming a lower court judgment requiring
petitioner to pay respondent Del Rosario by way of actual damages the salaries he was allegedly entitled to receive from
September 21, 1961, to the date of petitioner's vacation of his office as mayor. In support of this he relies solely upon Rodriguez
v. Tan, 91 Phil. 724, holding that a senator who had been proclaimed and had assumed office but was later on ousted in an
election protest, is a de facto officer during the time he held the office of senator, and can retain the emoluments received even
as against the successful protestant. Petitioner's factual premise is the appellate court's finding that he was a de facto officer
when he continued occupying the office of mayor after September 15, 1961.
However, We agree with the Court of Appeals that the Rodriguez case is not applicable here for absence of factual and legal
similarities. The Rodriguez case involved a senator who had been proclaimed as duly elected, assumed the office and was
subsequently ousted as a result of an election contest. These peculiar facts called for the application of an established
precedent in this jurisdiction that the candidate duly proclaimed must assume office notwithstanding a protest filed against him
and can retain the compensation paid during his incumbency. But the case at bar does not involve a proclaimed elective official
who will be ousted because of an election contest. The present case for injunction and quo warranto involves the forfeiture of the
office of municipal mayor by the incumbent occupant thereof and the claim to that office by the vice-mayor because of the
operation of Sec. 27 of the Rev. Election Code. The established precedent invoked in the Rodriguez case can not therefore be
applied in this case.
It is the general rule then, i.e., "that the rightful incumbent of a public office may recover from an officer de facto the salary
received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color
of title"6 that applies in the present case. The resulting hardship occasioned by the operation of this rule to the de facto officer
who did actual work is recognized; but it is far more cogently acknowledged that the de facto doctrine has been formulated, not
for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in
the official acts of persons discharging the duties of an office without being lawful officers.7 The question of compensation
involves different principles and concepts however. Here, it is possession of title, not of the office, that is decisive. A de
facto officer, not having good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever
amount of salary he received during the period of his wrongful retention of the public office. 8
Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby, affirmed in toto. Costs against petitioner.
So ordered.
SUPREME COURT
Manila
EN BANC
G.R. No. 83896 February 22, 1991
CIVIL LIBERTIES UNION, petitioner,

vs.
THE EXECUTIVE SECRETARY, respondent.
G.R. No. 83815 February 22, 1991
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners,

vs.
PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES
QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of
Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary
of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local
Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary;
JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and
Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of
Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and
Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the
National Economic Development Authority, respondents.
Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896.
Antonio P. Coronel for petitioners in 83815.
FERNAN, C.J.:p
These two (2) petitions were consolidated per resolution dated August 9, 19881 and are being resolved jointly as both seek a
declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The
pertinent provisions of the assailed Executive Order are:
Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or
assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position,
hold not more than two positions in the government and government corporations and receive the corresponding
compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards,
councils or bodies of which the President is the Chairman.
Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive
Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position
in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions other
than his primary position.
Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least
one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or
assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and
assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the
limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution,2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in
any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or
instrumentality thereof, including government-owned or controlled corporations or their subsidiaries. They shall strictly
avoid conflict of interest in the conduct of their office.
It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as members of the Cabinet, along with
the other public officials enumerated in the list attached to the petitions as Annex "C" in G.R. No.
838153 and as Annex "B" in G.R. No. 838964 from holding any other office or employment during their tenure. In addition to
seeking a declaration of the unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of the Philippines further
seeks in G.R. No. 83815 the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary restraining
order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple
positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other
forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse
or refund any and all amounts or benefits that they may have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the aforequoted "absolute and self-
executing" provision of the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing Section 13, Article VII in
relation to Section 7, par. (2), Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987,5 declaring that Cabinet
members, their deputies (undersecretaries) and assistant secretaries may hold other public office, including membership in the
boards of government corporations: (a) when directly provided for in the Constitution as in the case of the Secretary of Justice
who is made an ex-officio member of the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by
law; or (c) if allowed by the primary functions of their respective positions; and that on the basis of this Opinion, the President of
the Philippines, on July 25, 1987 or two (2) days before Congress convened on July 27, 1987: promulgated Executive Order No.
284.6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and Executive Order No. 284 as they
allegedly "lumped together" Section 13, Article VII and the general provision in another article, Section 7, par. (2), Article I-XB.
This "strained linkage" between the two provisions, each addressed to a distinct and separate group of public officers –– one,
the President and her official family, and the other, public servants in general –– allegedly "abolished the clearly separate,
higher, exclusive, and mandatory constitutional rank assigned to the prohibition against multiple jobs for the President, the Vice-
President, the members of the Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead
by example."7 Article IX-B, Section 7, par. (2)8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any other
office or employment in the government or any subdivision, agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987, as further elucidated and clarified
by DOJ Opinion No. 129, series of 19879 and DOJ Opinion No. 155, series of 1988,10 being the first official construction and
interpretation by the Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the Constitution,
involving the same subject of appointments or designations of an appointive executive official to positions other than his primary
position, is "reasonably valid and constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion
No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and DOJ
Opinion No. 155, series of 1988 construed the limitation imposed by E.O. No. 284 as not applying to ex-officio positions or to
positions which, although not so designated as ex-officio are allowed by the primary functions of the public official, but only to
the holding of multiple positions which are not related to or necessarily included in the position of the public official concerned
(disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on the principal submission that it
adds exceptions to Section 13, Article VII other than those provided in the Constitution. According to petitioners, by virtue of the
phrase "unless otherwise provided in this Constitution," the only exceptions against holding any other office or employment in
Government are those provided in the Constitution, namely: (1) The Vice-President may be appointed as a Member of the
Cabinet under Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and
Bar Council by virtue of Section 8 (1), Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB on the Civil Service Commission
applies to officers and employees of the Civil Service in general and that said exceptions do not apply and cannot be extended
to Section 13, Article VII which applies specifically to the President, Vice-President, Members of the Cabinet and their deputies
or assistants.
There is no dispute that the prohibition against the President, Vice-President, the members of the Cabinet and their deputies or
assistants from holding dual or multiple positions in the Government admits of certain exceptions. The disagreement between
petitioners and public respondents lies on the constitutional basis of the exception. Petitioners insist that because of the phrase
"unless otherwise provided in this Constitution" used in Section 13 of Article VII, the exception must be expressly provided in the
Constitution, as in the case of the Vice-President being allowed to become a Member of the Cabinet under the second
paragraph of Section 3, Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and Bar
Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that the phrase "unless otherwise provided
in the Constitution" in Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB insofar as the appointive officials
mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987 Constitution insofar as Cabinet
members, their deputies or assistants are concerned admit of the broad exceptions made for appointive officials in general
under Section 7, par. (2), Article I-XB which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled corporation or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has been
held that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and
the evils, if any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times,
and the condition and circumstances under which the Constitution was framed. The object is to ascertain the reason which
induced the framers of the Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in
order to construe the whole as to make the words consonant to that reason and calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and assistants as members of the governing bodies or
boards of various government agencies and instrumentalities, including government-owned and controlled corporations, became
prevalent during the time legislative powers in this country were exercised by former President Ferdinand E. Marcos pursuant to
his martial law authority. There was a proliferation of newly-created agencies, instrumentalities and government-owned and
controlled corporations created by presidential decrees and other modes of presidential issuances where Cabinet members,
their deputies or assistants were designated to head or sit as members of the board with the corresponding salaries,
emoluments, per diems, allowances and other perquisites of office. Most of these instrumentalities have remained up to the
present time.
This practice of holding multiple offices or positions in the government soon led to abuses by unscrupulous public officials who
took advantage of this scheme for purposes of self-enrichment. In fact, the holding of multiple offices in government was strongly
denounced on the floor of the Batasang Pambansa.12 This condemnation came in reaction to the published report of the
Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned and Controlled Corporations, Self-
Governing Boards and Commissions" which carried as its Figure No. 4 a "Roaster of Membership in Governing Boards of
Government-Owned and Controlled Corporations as of December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and morality in government service were the data contained
therein that Roberto V. Ongpin was a member of the governing boards of twenty-nine (29) governmental agencies,
instrumentalities and corporations; Imelda R. Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco,
Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea of thirteen (13); Ruben
B. Ancheta and Jose A. Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11)
each; and Lilia Bautista and Teodoro Q. Peña of ten (10) each.13
The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore
quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission,
convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution
the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple
governmental offices and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in
these cases, one of the strongest selling points of the 1987 Constitution during the campaign for its ratification was the
assurance given by its proponents that the scandalous practice of Cabinet members holding multiple positions in the
government and collecting unconscionably excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB already contains a blanket prohibition against the
holding of multiple offices or employment in the government subsuming both elective and appointive public officials, the
Constitutional Commission should see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants from holding any other office or employment
during their tenure, unless otherwise provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the constitutional provisions in question, the intent of the
framers of the Constitution was to impose a stricter prohibition on the President and his official family in so far as holding other
offices or employment in the government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article VII with other provisions of the Constitution on the
disqualifications of certain public officials or employees from holding other offices or employment. Under Section 13, Article VI,
"(N)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . .".
Under Section 5(4), Article XVI, "(N)o member of the armed forces in the active service shall, at any time, be appointed in any
capacity to a civilian position in the Government, including government-owned or controlled corporations or any of their
subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other office or employment, the prohibition pertains to an
office or employment in the government and government-owned or controlled corporations or their subsidiaries. In striking
contrast is the wording of Section 13, Article VII which states that "(T)he President, Vice-President, the Members of the Cabinet,
and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment
during their tenure." In the latter provision, the disqualification is absolute, not being qualified by the phrase "in the Government."
The prohibition imposed on the President and his official family is therefore all-embracing and covers both public and private
office or employment.
Going further into Section 13, Article VII, the second sentence provides: "They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or
special privilege granted by the Government or any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions imposed on the President and his
official family, which prohibitions are not similarly imposed on other public officials or employees such as the Members of
Congress, members of the civil service in general and members of the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family as a class by itself and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the President and his official family was also succinctly
articulated by Commissioner Vicente Foz after Commissioner Regalado Maambong noted during the floor deliberations and
debate that there was no symmetry between the Civil Service prohibitions, originally found in the General Provisions and the
anticipated report on the Executive Department. Commissioner Foz Commented, "We actually have to be stricter with the
President and the members of the Cabinet because they exercise more powers and, therefore, more cheeks and restraints on
them are called for because there is more possibility of abuse in their case." 14
Thus, while all other appointive officials in the civil service are allowed to hold other office or employment in the government
during their tenure when such is allowed by law or by the primary functions of their positions, members of the Cabinet, their
deputies and assistants may do so only when expressly authorized by the Constitution itself. In other words, Section 7, Article I-
XB is meant to lay down the general rule applicable to all elective and appointive public officials and employees, while Section
13, Article VII is meant to be the exception applicable only to the President, the Vice- President, Members of the Cabinet, their
deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in Section 13, Article VII cannot
possibly refer to the broad exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To construe said
qualifying phrase as respondents would have us do, would render nugatory and meaningless the manifest intent and purpose of
the framers of the Constitution to impose a stricter prohibition on the President, Vice-President, Members of the Cabinet, their
deputies and assistants with respect to holding other offices or employment in the government during their tenure. Respondents'
interpretation that Section 13 of Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate
the distinction so carefully set by the framers of the Constitution as to when the high-ranking officials of the Executive Branch
from the President to Assistant Secretary, on the one hand, and the generality of civil servants from the rank immediately below
Assistant Secretary downwards, on the other, may hold any other office or position in the government during their tenure.
Moreover, respondents' reading of the provisions in question would render certain parts of the Constitution inoperative. This
observation applies particularly to the Vice-President who, under Section 13 of Article VII is allowed to hold other office or
employment when so authorized by the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is
absolutely ineligible "for appointment or designation in any capacity to any public office or position during his tenure." Surely, to
say that the phrase "unless otherwise provided in this Constitution" found in Section 13, Article VII has reference to Section 7,
par. (1) of Article I-XB would render meaningless the specific provisions of the Constitution authorizing the Vice-President to
become a member of the Cabinet,15 and to act as President without relinquishing the Vice-Presidency where the President shall
not nave been chosen or fails to qualify.16 Such absurd consequence can be avoided only by interpreting the two provisions
under consideration as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e., Section 13,
Article VII as constituting the exception thereto. In the same manner must Section 7, par. (2) of Article I-XB be construed vis-a-
vis Section 13, Article VII.
It is a well-established rule in Constitutional construction that no one provision of the Constitution is to be separated from all the
others, to be considered alone, but that all the provisions bearing upon a particular subject are to be brought into view and to be
so interpreted as to effectuate the great purposes of the instrument.17 Sections bearing on a particular subject should be
considered and interpreted together as to effectuate the whole purpose of the Constitution18 and one section is not to be allowed
to defeat another, if by any reasonable construction, the two can be made to stand together.19
In other words, the court must harmonize them, if practicable, and must lean in favor of a construction which will render every
word operative, rather than one which may make the words idle and nugatory.20
Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter prohibition on the President, Vice-
President, members of the Cabinet, their deputies and assistants with respect to holding multiple offices or employment in the
government during their tenure, the exception to this prohibition must be read with equal severity. On its face, the language of
Section 13, Article VII is prohibitory so that it must be understood as intended to be a positive and unequivocal negation of the
privilege of holding multiple government offices or employment. Verily, wherever the language used in the constitution is
prohibitory, it is to be understood as intended to be a positive and unequivocal negation. 21 The phrase "unless otherwise
provided in this Constitution" must be given a literal interpretation to refer only to those particular instances cited in the
Constitution itself, to wit: the Vice-President being appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or
acting as President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the Secretary of Justice
being ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under Section 13, Article VII of the Constitution must not,
however, be construed as applying to posts occupied by the Executive officials specified therein without additional compensation
in an ex-officio capacity as provided by law and as required22 by the primary functions of said officials' office. The reason is that
these posts do no comprise "any other office" within the contemplation of the constitutional prohibition but are properly an
imposition of additional duties and functions on said officials. 23 To characterize these posts otherwise would lead to absurd
consequences, among which are: The President of the Philippines cannot chair the National Security Council reorganized under
Executive Order No. 115 (December 24, 1986). Neither can the Vice-President, the Executive Secretary, and the Secretaries of
National Defense, Justice, Labor and Employment and Local Government sit in this Council, which would then have no reason
to exist for lack of a chairperson and members. The respective undersecretaries and assistant secretaries, would also be
prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees of the National Manpower and Youth Council
(NMYC) or the Philippine Overseas Employment Administration (POEA), both of which are attached to his department for policy
coordination and guidance. Neither can his Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary Board.24 Neither can their respective undersecretaries and
assistant secretaries. The Central Bank Governor would then be assisted by lower ranking employees in providing policy
direction in the areas of money, banking and credit.25
Indeed, the framers of our Constitution could not have intended such absurd consequences. A Constitution, viewed as a
continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable; and
unreasonable or absurd consequences, if possible, should be avoided.26
To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering positions held without additional
compensation in ex-officio capacities as provided by law and as required by the primary functions of the concerned official's
office. The term ex-officio means "from office; by virtue of office." It refers to an "authority derived from official character merely,
not expressly conferred upon the individual character, but rather annexed to the official position." Ex-officio likewise denotes an
"act done in an official character, or as a consequence of office, and without any other appointment or authority than that
conferred by the office."27 An ex-officio member of a board is one who is a member by virtue of his title to a certain office, and
without further warrant or appointment.28 To illustrate, by express provision of law, the Secretary of Transportation and
Communications is the ex-officio Chairman of the Board of the Philippine Ports Authority,29 and the Light Rail Transit Authority.30
The Court had occasion to explain the meaning of an ex-officio position in Rafael vs. Embroidery and Apparel Control and
Inspection Board,31 thus: "An examination of section 2 of the questioned statute (R.A. 3137) reveals that for the chairman and
members of the Board to qualify they need only be designated by the respective department heads. With the exception of the
representative from the private sector, they sit ex-officio. In order to be designated they must already be holding positions in the
offices mentioned in the law. Thus, for instance, one who does not hold a previous appointment in the Bureau of Customs,
cannot, under the act, be designated a representative from that office. The same is true with respect to the representatives from
the other offices. No new appointments are necessary. This is as it should be, because the representatives so
designated merely perform duties in the Board in addition to those already performed under their original appointments."32
The term "primary" used to describe "functions" refers to the order of importance and thus means chief or principal function. The
term is not restricted to the singular but may refer to the plural.33 The additional duties must not only be closely related to, but
must be required by the official's primary functions. Examples of designations to positions by virtue of one's primary functions
are the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority34 and the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely related, inconsistent, incompatible, or otherwise alien to
the primary function of a cabinet official, such additional functions would fall under the purview of "any other office" prohibited by
the Constitution. An example would be the Press Undersecretary sitting as a member of the Board of the Philippine Amusement
and Gaming Corporation. The same rule applies to such positions which confer on the cabinet official management functions
and/or monetary compensation, such as but not limited to chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries.
Mandating additional duties and functions to the President, Vice-President, Cabinet Members, their deputies or assistants which
are not inconsistent with those already prescribed by their offices or appointments by virtue of their special knowledge, expertise
and skill in their respective executive offices is a practice long-recognized in many jurisdictions. It is a practice justified by the
demands of efficiency, policy direction, continuity and coordination among the different offices in the Executive Branch in the
discharge of its multifarious tasks of executing and implementing laws affecting national interest and general welfare and
delivering basic services to the people. It is consistent with the power vested on the President and his alter egos, the Cabinet
members, to have control of all the executive departments, bureaus and offices and to ensure that the laws are faithfully
executed.35 Without these additional duties and functions being assigned to the President and his official family to sit in the
governing bodies or boards of governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as
required by their primary functions, they would be supervision, thereby deprived of the means for control and resulting in an
unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions may not transgress the prohibition embodied in
Section 13, Article VII of the 1987 Constitution, such additional duties or functions must be required by the primary functions of
the official concerned, who is to perform the same in an ex-officio capacity as provided by law, without receiving any additional
compensation therefor.
The ex-officio position being actually and in legal contemplation part of the principal office, it follows that the official concerned
has no right to receive additional compensation for his services in the said position. The reason is that these services are
already paid for and covered by the compensation attached to his principal office. It should be obvious that if, say, the Secretary
of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is actually and in legal contemplation
performing the primary function of his principal office in defining policy in monetary and banking matters, which come under the
jurisdiction of his department. For such attendance, therefore, he is not entitled to collect any extra compensation, whether it be
in the form of a per them or an honorarium or an allowance, or some other such euphemism. By whatever name it is designated,
such additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of Commissioner Christian Monsod to add to Section 7,
par. (2), Article IX-B, originally found as Section 3 of the General Provisions, the exception "unless required by the functions of
his position,"36 express reference to certain high-ranking appointive public officials like members of the Cabinet were
made.37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out that there are instances when
although not required by current law, membership of certain high-ranking executive officials in other offices and corporations is
necessary by reason of said officials' primary functions. The example given by Commissioner Monsod was the Minister of Trade
and Industry.38
While this exchange between Commissioners Monsod and Ople may be used as authority for saying that additional functions
and duties flowing from the primary functions of the official may be imposed upon him without offending the constitutional
prohibition under consideration, it cannot, however, be taken as authority for saying that this exception is by virtue of Section 7,
par. (2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary session of September 27, 1986.
Under consideration then was Section 3 of Committee Resolution No. 531 which was the proposed article on General
Provisions.39 At that time, the article on the Civil Service Commission had been approved on third reading on July 22,
1986,40 while the article on the Executive Department, containing the more specific prohibition in Section 13, had also been
earlier approved on third reading on August 26, 1986.41 It was only after the draft Constitution had undergone reformatting and
"styling" by the Committee on Style that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and
reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ."
What was clearly being discussed then were general principles which would serve as constitutional guidelines in the absence of
specific constitutional provisions on the matter. What was primarily at issue and approved on that occasion was the adoption of
the qualified and delimited phrase "primary functions" as the basis of an exception to the general rule covering all appointive
public officials. Had the Constitutional Commission intended to dilute the specific prohibition in said Section 13 of Article VII, it
could have re-worded said Section 13 to conform to the wider exceptions provided in then Section 3 of the proposed general
Provisions, later placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and his official family is by reason of the legal
principles governing additional functions and duties of public officials rather than by virtue of Section 7, par. 2, Article IX-B At any
rate, we have made it clear that only the additional functions and duties "required," as opposed to "allowed," by the primary
functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order to arrive
at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail 42 as said
proceedings are powerless to vary the terms of the Constitution when the meaning is clear.1âwphi1 Debates in the constitutional
convention "are of value as showing the views of the individual members, and as indicating the reasons for their votes, but they
give us no light as to the views of the large majority who did not talk, much less of the mass of our fellow citizens whose votes at
the polls gave that instrument the force of fundamental law. We think it safer to construe the constitution from what appears
upon its face."43 The proper interpretation therefore depends more on how it was understood by the people adopting it than in
the framers's understanding thereof.44
It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-
President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment
in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held
without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their
office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general
rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's
manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987
Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that
Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two
(2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple
offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987 Constitution
prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition
mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be
stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier
clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by
law and as required by the primary functions of his office do not fall under the definition of "any other office" within the
contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the
feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more
than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived
from a department head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the
distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages
to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and
economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin
and taking in more than what he can handle.
Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and
Natural Resources Fulgencio Factoran, Jr., Secretary of Local Government45 Luis Santos, Secretary of National Defense Fidel
V. Ramos, Secretary of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately relinquish
their other offices or employment, as herein defined, in the government, including government-owned or controlled corporations
and their subsidiaries. With respect to the other named respondents, the petitions have become moot and academic as they are
no longer occupying the positions complained of.
During their tenure in the questioned positions, respondents may be considered de facto officers and as such entitled to
emoluments for actual services rendered.46 It has been held that "in cases where there is no de jure, officer, a de facto officer,
who, in good faith has had possession of the office and has discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in an appropriate action recover the salary, fees and other compensations attached to the
office. This doctrine is, undoubtedly, supported on equitable grounds since it seems unjust that the public should benefit by the
services of an officer de facto and then be freed from all liability to pay any one for such services.47 Any per diem, allowances or
other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore
be retained by them.
WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby
declared null and void and is accordingly set aside.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. L-3913 August 7, 1952
EULOGIO RODRIGUEZ, SR., plaintiff-appellant,

vs.
CARLOS TAN, defendant-appellee.
Ramon Diokno and Jose W. Diokno for appellant.

Agustin Alvarez Salazar for appellee.
BAUTISTA ANGELO, J.:
Plaintiff seeks to collect from the defendant the aggregate sum of P18,400 as salaries and allowances and the sum of
P35,524.55 as damages, upon the plea that the latter usurped the office of Senator of the Philippines which rightfully belongs to
the former from December 30, 1947, to December 27, 1949.
Plaintiff claims that on December 30, 1947, defendant usurped the office of Senator of the Philippines, and from that date until
December 1949, he continously collected the salaries, emoluments and privileges attendant to that office amounting to P18,400;
that protest having been filed by plaintiff against defendant, the Senate Electoral Tribunal on December 16, 1949, rendered
judgment declaring plaintiff to have been duly elected to the office; and that by reason of such usurpation, plaintiff suffered
damages in the amount of P35,524.55 for expenses he incurred in prosecuting the protest.
On February 2, 1950, defendant filed a motion to dismiss alleging, on one hand, that the judgment rendered by the Senate
Electoral Tribunal in the protest case is a bar to this action under the principle of res judicata, and, on the other, that said
Tribunal denied without any reservation the claim of the plaintiff for expenses incurred in prosecuting the protest.
The issue having been thus joined upon the motion to dismiss, the Court entered on an order dismissing the complaint with
costs. From this order plaintiff has appealed.
The averment in the complaint that "defendant usurped the office of Senator of the Philippines" is a conclusion of law, — not a
statement of fact, — inasmuch as the particular facts on which the alleged usurpation is predicated are not set forth therein.
Hence such averment cannot be deemed admitted by the motion to dismiss (Fressel vs. Mariano Uy Chanco & Sons & Co., 34
Phil., 122). Moreover, such averment is negatived by the decision of the Senate Electoral Tribunal in the protest case which
says that defendant was one of those proclaimed elected as Senator in the general elections held on November 11, 1947.
Defendant, cannot, therefore, be considered a usurper as claimed in the complaint.
With this preliminary statement, let us now proceed to determine the only issue involved in this appeal, to wit, whether
defendant, who has been proclaimed, took the oath of office, and discharged the duties of Senator, can be ordered to reimburse
the salaries and emoluments he has received during his incumbency to the plaintiff who has been legally declared elected by the
Senate Electoral Tribunal. .
Plaintiff claims that, as defendant was found and by final judgment not to have been entitled to the office of Senator, and, as
such, he was during the time he discharged that office a mere de facto officer, he should reimbursed to the plaintiff the salaries
and emoluments he has received on the following grounds; (1) because the salaries and emoluments follow and are inseparable
from legal title to the office and do not depend on whether the duties of the office are discharged or not; and (2) because such a
rule tends to curb election frauds and lessens the danger and frequency of usurpation or instrusion into the office. Plaintiffs
invites the attention of the Court to the annotation appearing in 93 A.L.R. 258,273 et seq., supplemented in 151 A.L.R. 952, 960,
et seq., wherein more than 100 cases are cited in support of the rule.
Defendant, on the other hand, contends that the rule invoked by plaintiff, while sound and plausible cannot be invoked in the
present case, since it runs counter to the principle and rule long observed in this jurisdiction to the effect that one who has been
elected to an office, and has been proclaimed by the corresponding authority, has a right to assume the office and discharge its
functions notwithstanding the protest filed against his election, and as a necessary consequence he has likewise the right to
collect and received the salaries and emoluments thereunto appertaining as a compensation for the salaries he has rendered.
Defendants avers that plaintiff already attempted to seek the reimbursement of the salaries and emoluments he had received in
the protest he has filed against him Senate Electoral Tribunal constitutes a bar to his right to collect the same salaries and
emoluments in the present case.
After a careful consideration of the issue in the light of the law and precedents obtaining in this jurisdiction, we are inclined to
uphold the point of view of the defendant. There is no question that the defendant acted as a de facto officer during the time he
held the office of Senator. He was one of the candidates of the Liberal Party in the elections of November 11, 1947, and was
proclaimed as one of those who had been elected by the Commission on Elections, and thereafter he took the oath of office and
immediately entered into the performance of the duties of the position. Having been thus duly proclaimed as Senator and having
assumed office as required by law, it cannot be disputed that defendant is entitled to the compensation, emoluments and
allowances which our Constitution provides for the position (article VI, section 14). This is as it should be. This is in keeping with
the ordinary course of events. This is simple justice. The emolument must go to the person who rendered service unless the
contrary is provided. There is no averment in the complaint that he is linked with any irregularity vitiating his election. This is the
policy and the rule that has been followed consistently in this jurisdiction in connection with the provisions held by persons who
had been elected thereto but were later ousted as a result of an election protest. The right of the persons elected to
compensation during their incumbency has always been recognized. We cannot recall of any precedent wherein the contrary
rule has been upheld.
A case which may be invoked in support of this point of view is Page vs. U.S. (127 U.S. 67; 32 Law ed. 65), decided by the
Supreme Court of the United States. In that case, one William A. Pirce was declared elected, received a certificate of election,
was sworn in and took his seat in the Congress of the United States. His election was contested by Charles H. Page, and as a
result the House of Representatives found that Pirce was not duly elected his seat vacant. An election was thereafter held to fill
the vacancy and Page was duly elected. Thereupon Page was sworn in and took his seat. Page later sued to recover the salary
received by Price during his incumbency. The Supreme Court ruled that he was not entitled to it holding that "one whose
credentials showed that he was regularly elected a member of Congress, and who was sworn in and took his seat, and served,
and drew his salary, was — although his seat was contested, and subsequently he was declared by Congress not to have been
elected, and this seat was declared vacant — the predecessor of the person elected to fill the vacancy". This case, thought it
arose under a special statute, is significant in that it regarded Pirce as the lawful predecessor of Page in the office to which he
was later legally elected. Pirce was declared entitled to the salary and emoluments of the office.
We are sympathetic to the rule earnestly advocated by the plaintiff which holds that the salaries and emoluments should follow
the legal title to the office and should not depend and whether the duties of the office are discharged or not, knowing that it is
predicated on a policy designed to discourage the Commission of frauds and to lessen the danger and frequency of usurpation
or intrusion into the office which defeat the will of the people. We are conscious that, if the rule is adopted, it would indeed have
a wholesome effect in future elections and would serve as a deterring factor in the commission of frauds, violence and terrorism
which at the times are committed in some sectors of our country to the detriment of public interest. But an examination of the
cases relied upon by him, discloses that in some states, like Indiana, New York, Michigan, California, Lousiana, Idaho, Missouri
and Washington, the doctrine advocated is premised on express statutory by reason of usurpation, (Mechem, A Treatise on the
Law of Public Offices and Officers, pp. 223-224; 93 A.L.R. pp. 284-287), whereas in the rest in the ruling is based on common
law (Kreitz vs. Behrensmeyer, 24 A.L.R. 223-224). Under such predicament, it is indeed hard to see how we can extend here
the force and effect of such doctrine as we are urged, knowing well that, as a rule, "neither the English nor the American
common law as in force in these Islands upon our courts" (U.S. vs. Cuna, 12 Phil., 241; Arnedo vs. Llorente and Liongson, 18
Phil., 257, 262) while, on the other hand, there is nothing in our status which would authorize us to adopt the rule. For us to
follow the suggestion of the plaintiff would be legislate by judicial ruling which is beyond the province of the Court. Nor are we
justified to follow a common law principle which runs counter to a precedent long observed in this jurisdiction.
Another reason that may be involved in opposition to the claim of the plaintiff is the principle of res judicata. It appears that
plaintiff had already set up this claim in the protest he filed against the defendant before the Senate Electoral Tribunal, but when
the case was decided on the merits the Tribunal passed up this matter sub silentio. In our opinion, this silence may be
interpreted as a denial of the relief. This is a matter which can be considered as an incident to the power and authority given to
the Electoral Tribunal by our Constitution, whose jurisdiction over election cases is ample and unlimited (Sanidad et al. vs. Vera
et al., Case No. 1, Senate Electoral Tribunal), and when the Tribunal chose to pass sub silentio, or ignore altogether, this
important claim, the clear implication is that it deemed it unjustified. This matter, therefore, cannot now be passed upon in line
with the doctrine laid down in the case of Kare vs. Locsin, (61 Phil., 541), wherein the Court, among other things, said;
Locsin drew his pay by resolution and authority of the Legislature. The propriety of those payments cannot be
questioned on this complaint. We recognize Locsin's rigth to receive and to retain the compensation because the
Legislature voted it to him in spite of Mr. Kare's pending contest and claim to that compensation. The legislature's
carries the corollary of Mr. Kare's lack of right to the same compensation. The Legislature might possibly have required
reimbursement by Locsin had it been its intention to recognize Mr. Kare's claim to the same compensation; but not
having done so, Locsin's superior right to this compensation is res judicata for the courts. (Kare vs. Locsin, 61 Phil., pp.
541, 546.)
The same consideration may be made with regard to the claim for damages contained in the second cause of action of the
complaint.
Wherefore, the order appealed from is affirmed, with costs against the appellant.
SUPREME COURT
Manila
EN BANC
G.R. No. L-30188 October 2, 1928
FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO, BERNARDO SOLDE and VICENTE ELUM, petitioners,
vs.
NICOLAS CAPISTRANO, acting as Judge of First Instance of Oriental Negros. ALFREDO B. CACNIO, as Provincial
Fiscal of Oriental Negros, and JUAN GADIANI, respondents.
Abad Santos, Camus and Delgado and Teopisto Guingona for petitioners.
Araneta and Zaragoza for respondents.
The respondent Judge in his own behalf.
OSTRAND, J.:
This is a petition for a writ of prohibition enjoining the respondent judge from making cognizance of certain civil and criminal
election cases in which the petitioners are parties.
The petitioners allege that the respondent judge, previous to this date, was appointed judge of the Court of First Instance of
Oriental Negros, to hold office during good behavior and until he should reach the age of 65 years; that he now has reached that
age and, therefore, under the provisions of section 148 of the Administrative Code as amended, is disqualified from acting as a
judge of the Court of First Instance. The petitioners further allege that in view of the many election protests and criminal cases
for violation of the election law filed in the Court of First Instance of Oriental Negros arising in the Court of First Instance of
Oriental Negros arising from the last election of June 5, 1928, the Honorable Sixto de la Costa was duly designated and acted
as auxiliary judge of the Province of Oriental Negros; that between the auxiliary judge and the respondent judge herein there
was an understanding, and the assignment of the said auxiliary judge was made with this understanding, that the said auxiliary
judge so designated would hear and take cognizance of all election protests and criminal actions then pending or to filed arising
from the said last general election, and that the respondent Honorable Nicolas Capistrano would try and hear the ordinary cases
pending in the said court, but, notwithstanding this understanding or agreement, the respondent judge tried and is still trying to
take cognizance of the election protests an criminal actions in said court; that the respondent judge declared in open court that
he will try the criminal cases herein mentioned for the reason that the auxiliary judge refused to try the same on the ground that
the preliminary investigations were held before him, when, in truth and in fact, the said auxiliary judge did not make the
statement imputed to him and was and is still willing to try the election protests and criminal cases for violation of the election
law pending in the court of the Province of Oriental Negros; that the respondent Honorable Nicolas Capistrano, in spite of the
fact that he was holding and is now pretending to hold the office of judge of the Court of First Instance of Oriental Negros, took
great interest and active part in the filing of criminal charges against the petitioners herein to the unjustifiable extent of
appointing a deputy fiscal, who then filed the proper informations, when the provincial fiscal refused to file criminal charges
against the petitioners for violation of the election law for lack of sufficient evidence to sustain the same; that said respondent is
neither a judge de jure nor de facto, but that, notwithstanding this fact, he continues to hold the office of judge of the Court of
First Instance of Oriental Negros and pretends to be duly qualified and acting judge of the said province; and that he has tried,
and continues to try, to act as such judge and that there is reasonable ground to believe that he will take cognizance of the
cases in question unless he be restrained by order of this court; that in acting as a duly qualified judge notwithstanding the facts
alleged in the fifth, sixth, and seventh paragraphs hereof, the respondent judge acted and is about to act without and in excess
of jurisdiction and also after the loss of jurisdiction.
To this petition the respondents demur on the ground that the facts stated in that (1) none of the facts alleged in the petition
divest the respondent judge of his jurisdiction to take cognizance of the cases referred to in the complaint, and (2) even
admitting as true, for the sake of this demurrer, the facts alleged in paragraph 7 of the petition, the respondent judge is still a de
facto judge and his title to the office and his jurisdiction to hear the cases referred to in the petition cannot be questioned by
prohibition, as this writ, even when directed against persons acting as judges, cannot be treated as a substitute for quo
warranto, or be rightfully called upon to perform any of the functions of that writ.
The ground upon which the petition rests may be reduced to three propositions. (1) That the assignment of the Auxiliary Judge,
Sixto de la Costa, to Dumaguete was made with the understanding that the he was to hear and take cognizance of all election
contests and criminal causes for violation of the election law and that the respondent judge was to take cognizance of the
ordinary cases and that there was an understanding between them that this arrangement was to be followed.
(2) That the respondent judge took great interest and an active part in the filing of the criminal charges against the
petitioners herein to the unjustifiable extent of appointing a deputy fiscal who filed the proper informations when the
regular provincial fiscal refused to file them for lack of sufficient evidence.
(3) That the respondent judge is already over 65 years of age and has, therefore, automatically ceased as judge of the
Court of First Instance of Oriental Negros and that he is neither a judge de jure nor de facto.
(a) But little need be said as to the first proposition. A writ of prohibition to a judge of an interior court will only
lie in cases where he acts without or in excess of his jurisdiction (section 226, Code of Civil Procedure), and it
is obvious that a mere "understanding" as to the distribution of cases for trial did not deprive the respondent
judge of the jurisdiction conferred upon him by law. It may be noted that it is not alleged that another judge had
taken cognizance of the cases in question or that they had been definitely assigned to trial before such other
judge.
(b) The second proposition is equally untenable.1awph!l.net That the respondent judge took great interest and
an active part in the filing of the criminal charges against the petitioners to the extent of appointing a deputy
fiscal when the regular provincial fiscal refused to file the proper informations, did not disqualify him from trying
the case in question. Section 1679 of the Administrative Code provides that "when a provincial fiscal shall be
disqualified by personal interest to act in a particular case or when for any reason he shall be unable, or shall
fail, to discharge any of the duties of his position, the judge of the Court of First Instance of the province shall
appoint an acting provincial fiscal, . . . ." (Emphasis ours.)
The determination of the question as to whether the fiscal has failed to discharge his duty in the prosecution of
a crime must necessarily, to a large extent, lie within the sound discretion of the presiding judge, and there is
no allegation in the petition that such discretion was abused in the present instance. It is true that it is stated
that the appointment of the acting fiscal was "unjustifiable," but that is only a conclusion of law and not an
allegation of facts upon which such a conclusion can be formed and may, therefore, be disregarded. It follows
that in appointing an acting fiscal, the respondent judge was well within his jurisdiction.
(c) The third ground upon which the petition is based is the most important and merits some consideration. It is
well settled that the title to the office of a judge, whether de jure or de facto, can only be determined in a
proceeding in the nature of quo warranto and cannot be tested by prohibition. But counsel for the petitioners
maintains that the respondent judge is neither a judge de jure nor de facto and that, therefore, prohibition will
lie. In this, counsel is undoubtedly mistaken.
The respondent judge has been duly appointed to the office of Judge of the Court of First Instance of Oriental Negros, but
section 148 of the Administrative Code, as amended, provides that "Judges of the Court of First Instance and auxiliary judges
shall be appointed to serve until they shall reach the age of sixty-five years." In view of this provision and assuming, as we must,
that the allegations of the petition are true, it is evident that the respondent is no longer a judge de jure, but we do not think that
it can be successfully disputed that he is still a judge de facto.
Briefly defined, a de facto judge is one who exercises the duties of a judicial office under color of an appointment or election
thereto (Brown vs. O'Connell, 36 Conn., 432). He differs, on the one hand, from a mere usurper who undertakes to act officially
without any color of right, and on the other hand, from a judge de jure who is in all respects legally appointed and qualified and
whose term of office has not expired (State vs. Carroll, 38 Conn., 449; Denny vs. Matton, 2 Allen [Mass.], 361; Van Slyke vs.
Farmers' Mut. Fire Ins. Co., 39 Wis., 390).
Apart from any constitutional or statutory regulation on the subject there seems to be a general rule of law that an
incumbent of an office will hold over after the conclusion of his term until the elction and qualification of a successor (22
R. C. L., pp. 554-5). When a judge in good faith remains in office after his title has ended, he is a de facto officer
(Sheehan's Case, 122 Mass., 445).
Applying the principles stated to the facts set forth in the petition before us, we cannot escape the conclusion that, on the
assumption that said facts are true, the respondent judge must be considered a judge de facto. His term of office may have
expired, but his successor has not been appointed, and as good faith is presumed, he must be regarded as holding over in good
faith. The contention of counsel for the petitioners that the auxiliary judge present in the district must be considered the regular
judge seems obviously erroneous.
In these circumstances the remedy prayed for cannot be granted. "The rightful authority of a judge, in the full exercise of his
public judicial function, cannot be questioned by any merely private suitor, nor by any other, excepting in the form especially
provided by law. A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that
assumption is open to the attack of the sovereign power alone. Accordingly, it is a well established principle, dating from the
earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts of a de facto judge are just as
valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned.
The rule is the same in civil criminal cases. The principle is one founded in policy and convenience, for the right of no one
claiming a title or interest under or through the proceedings of an officer having an apparent authority to act would be safe, if it
were necessary in every case to examine the legality of the title of such officer up to its original source, and the title or interest of
such person were held to be invalidated by some accidental defect or flaw in the appointment, election or qualification of such
officer, or in the rights of those from whom his appointment or election emanated; nor could the supremacy of the laws be
maintained, or their execution enforced, if the acts of the judge having a colorable, but not a legal title, were to be deemed
invalid. As in the case of judges of courts of record, the acts of a justice de facto cannot be called in question in any suit to which
he is not a party. The official acts of a de facto justice cannot b attacked collaterally. An exception to the general rule that the title
of a person assuming to act as judge cannot be questioned in a suit before him is generally recognized in the case of a special
judge, and it is held that a party to an action before a special judge may question his title to the office of a judge on the
proceedings before him, and that the judgment will be reversed on appeal, where proper exceptions are taken, if the person
assuming to act as special judge is not a judge de jure. The title of a de facto officer cannot be indirectly questioned in a
proceeding to obtain a writ of prohibition to prevent him from doing an official act nor in a suit to enjoin the collection of a
judgment rendered by him. Having at least colorable right to the office his title can be determined only in a quo warranto
proceeding or information in the nature of a quo warranto at suit of the sovereign." (15 R. C. L., pp. 519-521.)
The demurrer to the petition is sustained, and inasmuch as it is evident that the weakness of the petition cannot be cured by
amendment the present proceedings are hereby dismissed with the costs against the petitioners jointly and severally. The
preliminary injunction hereinbefore issued is dissolved. So ordered.
EN BANC
G.R. No. 154674 May 27, 2004
THE CIVIL SERVICE COMMISSION, petitioner,

vs.
FELICISIMO O. JOSON, JR., in his capacity as former Administrator of the Philippine Overseas Employment
Administration (POEA), respondent.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari of the Decision1 of the Court of Appeals dated August 12, 2002 reversing Resolution No.
002778 of the Civil Service Commission (CSC) which denied the respondent’s request for payment of the salary of Priscilla Ong,
as Executive Assistant IV in the Office of the Philippine Overseas Employment Administrator (POEA) for the period of July 1,
1995 to October 31, 1995.
The antecedents are as follows.
On July 1, 1995, Respondent Felicisimo O. Joson, Jr., then Administrator of the Philippine Overseas Employment Administration
(POEA) appointed Priscilla Ong as Executive Assistant IV in his office under a contractual status. The appointment was made
after the Department of Budget and Management (DBM) thru Director Miguel B. Doctor2 approved his request for the creation of
a contractual position of Executive Assistant IV at the Office of the POEA Administrator, effective not earlier than July 1, 1995.
Subsequently, respondent Joson wrote the CSC requesting exemption from the rule requiring appointees to confidential staff
positions to meet the prescribed educational qualification.3 The educational requirement for the position of Executive Assistant is
a "Bachelor’s degree relevant to the job"4 and Priscilla Ong was not a college degree holder.
Acting upon this request, the petitioner CSC issued Resolution No. 956978 on November 2, 1995, approving the appointment of
Ong under a Coterminous Temporary status:
In this case, it is clear that Ong does not meet the educational qualification for the position of Executive Assistant IV.
However, considering that Ong has to her credit 65 units leading to a Bachelor’s degree and that the said position is
coterminous with the appointing authority and belongs to his confidential/personal staff, the proposed appointment of
Ong may be allowed under Coterminous Temporary status.
WHEREFORE, the instant request of Administrator Felicisimo O. Joson, Jr. is hereby granted. Accordingly, the
appointment of Priscilla E. Ong to the position of Executive Assistant IV, POEA, may be approved under Coterminous
Temporary status.5
However, on February 6, 1996, Director Nelson Acebedo of the CSC National Capital Region (NCR) issued a post audit report
on the issuance of Ong’s appointment made on July 1, 1995, and invalidated the same. A motion for reconsideration was filed,
stressing, among others, that the Department of Budget Management (DBM) allowed the POEA to create such a position not
earlier than July 1, 1995 and that no less than the petitioner itself approved the appointment under a coterminous temporary
status. Upon the instructions of Director Acebedo, the effectivity of Ong’s appointment was changed from July 1, 1995 to
November 2, 1995.6
Considering the said adjustment in the effectivity date of Ong’s appointment, the respondent then requested approval for the
payment of her salary for services rendered for the period of July 1, 1995 to October 31, 1995.
The petitioner denied the request for the payment of Ong’s salary in Resolution No. 974094 dated October 16, 1997. 7 Citing
Rep. Act No. 7430 also known as the Attrition Law which, in part, states that no appointment shall be made to fill up a vacancy
unless an authority has been granted by it,8 the petitioner posited that the authority to fill the position was granted only on
November 2, 1995 when it issued CSC Resolution No. 956978. The request for the payment of salary referred to the period prior
to the date of authority to fill the position; such claim cannot, therefore, be allowed. The petitioner concluded that, as the
appointing authority, it is the respondent who shall be personally liable for the payment of salaries as provided in Item 5(a), Part
I, CSC MC No. 38, s. 1993, which states:
5. Liability of Appointing Authority and Other Officers
a. The appointing authority shall be personally liable for the salary of appointees whose appointments have
been disapproved for violation of pertinent laws such as RA 7041 and RA 7430. 9
The respondent filed a motion for reconsideration, averring that Ong was appointed to a newly-created position which does not
require any such authority from the petitioner. The respondent emphasized in his motion that the DBM approved the creation of
the position for Ong. He asserted that, if at all, it is the POEA who should be liable under the principle of quantum meruit since
the latter was the one benefited. Thus:
Admittedly, the herein movant requested an Authority to fill the said position which was not necessary under the
premise since the position involved was a newly created position. In the first place, the Department of Budget and
Management through the Director of CPCB granted the request for the creation of said position due to the dire need
and necessity of said provision. POEA could not have transgressed any provision of RA 7430 and its implementing
rules when POEA appointed Ms. Ong to the said newly created position on July 1, 1995….
… POEA should pay Ms. Ong for her services since POEA was the one benefited not the herein movant in his personal
capacity. The principle of quantum meruit dictates that not only is the one who rendered services who should paid (sic)
but equally important, is that the one benefited from such services must be the one who should pay the services. If the
herein movant would be made personally liable to pay for her services, just the same, it is tantamount to unjust
enrichment on the part of the government at the movant’s expense…10
On June 8, 1998, the petitioner issued Resolution No. 981399 denying the respondent’s motion for reconsideration.11 It affirmed
its ruling that the effectivity date of Ong’s appointment should be reckoned from November 2, 1995 when it granted the authority
to the respondent to fill the position, and not July 1, 1995 as asserted by the respondent. It also declared that Ong’s appointment
was not included in the POEA’s Report on Personnel Action (ROPA) submitted to the petitioner for the month of July 1995:
POEA, as an accredited agency is mandated by CSC rules to submit within fifteen (15) days of each ensuing month to
the Civil Service Regional office of Field Office concerned two copies of Monthly Report on Personnel Action, together
with certified true copy of appointments acted upon (Item, 2.2.7, Rule V, CSC Memorandum Circular No. 27, s. 1994).
In the instant case, POEA failed to comply with this rule when it did not include the appointment of Ong in its July
ROPA.12
The petitioner also held that the POEA only submitted Ong’s appointment in its ROPA for the month of November 1995. Such
belated report rendered the appointment in July ineffective.13 The petitioner concluded that there was clearly no legal basis for
the payment of Ong’s salary prior to November 2, 1995, and that the principle of quantum meruit invoked by the respondent was
not applicable.
The respondent moved for a clarification of CSC Resolution No. 981399, pointing out that the petitioner did not rule on the
matter of POEA’s alleged violation of the Attrition Law, particularly on the failure to secure "prior authority to fill." The respondent
asserted that the POEA’s alleged failure to include the proposed appointment of Ong in its July 1995 ROPA was justified
because Ong’s appointment was still the subject of a request for exemption from the requirement of Memorandum Circular (MC)
No. 38, s. 1993. The respondent received CSC Resolution No. 956978 approving Ong’s appointment under a coterminous
temporary status only on November 5, 1995; hence, the appointment was included only in the November ROPA. The
respondent pointed out that the task and duty of preparing and submitting the monthly ROPA lies with the officials of the
Personnel Department of the POEA. Finally, the respondent averred, if there was, indeed, a failure to comply with the CSC
Circular No. 27, Series of 1994, it would be quite unfair and unjust for the petitioner to order the respondent to pay the salary of
Ong out of his (the respondent’s) personal funds.
The petitioner denied the motion of the respondent in Resolution No. 991839 dated August 17, 1999. It held that the respondent
as the appointing authority, was accountable for all the appointments he issued; he cannot, thus, hide behind the mistakes of his
subordinates. The petitioner also reiterated its ruling that the appointment of Ong was made in violation of the CSC Law and its
rules. As such, the respondent must assume responsibility for the payment of Ong’s salary. Thus:
WHEREFORE, the CSC Resolution No. 981399 dated June 8, 1998 is hereby clarified. Accordingly, the payment of
salaries, benefits and other emoluments from July 1, 1995 to October 30, 1995 of Priscilla Ong, whose appointment
was in violation of R.A. 7430 (Attrition Law), shall be the personal liability of then Administrator Felicisimo O. Joson. 14
The respondent filed a motion for reconsideration of the resolution.
The petitioner treated the pleading as a second motion for reconsideration, and denied the same in Resolution No. 001956
dated August 30, 2000, in this wise:
WHEREFORE, the second Motion for Reconsideration of Felicisimo O. Joson, Jr. is hereby DENIED. Accordingly, the
CSC Resolution No. 974094 dated October 16, 1997 stands.15
The petitioner filed another motion seeking for the reconsideration of the CSC Resolution No. 991839 pointing out that Ong may
be considered a de facto public officer who is entitled to the payment of salaries for actual services rendered. The CSC outrightly
denied the motion in CSC Resolution No. 002778 dated December 13, 2000:
WHEREFORE, the instant motion for reconsideration is hereby DENIED for lack of merit. Consequently, CSC
Resolution No. 991839 dated August 17, 1999 stands. This case is considered closed and terminated.16
Unfazed, the respondent appealed the CSC resolutions to the Court of Appeals. On August 12, 2002, the CA rendered the
assailed judgment in favor of herein respondent, ruling that Ong was considered a de facto officer and is entitled to the payment
of her salary. The dispositive portion of the decision reads as follows:
WHEREFORE, in view of the foregoing, the instant petition for review is hereby GRANTED. Resolution No. 002778
dated 13 December 2000 rendered by public respondent Civil Service Commission, denying payment of Miss Priscilla
Ong’s compensation from 1 July 1995 to 31 October 1995, is hereby SET ASIDE. 17
Hence, this petition for review on certiorari raising the lone issue that:
THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT PRISCILLA ONG IS ENTITLED TO PAYMENT OF
HER SALARIES FROM THE GOVERNMENT FOR BEING A DE FACTO OFFICER.
The petitioner maintains that Ong cannot be entitled to the payment of salary prior to November 2, 1995 because of the
following: (a) Ong did not possess the necessary qualification for the position; (b) her appointment was made in violation of the
Civil Service Law and its rules; (c) there was no prior authority to appoint, in violation of Rep. Act No. 7430; and, (d) the
appointment was not reported in the July ROPA, making such appointment ineffective.
We rule for the respondent.
The records show that the position of Executive Assistant IV in the POEA Administrator’s office was created with the approval of
the DBM on July 1, 1995. This was pursuant to a request made by the respondent for a position in his office under a contractual
status. It is quite apparent that the respondent intended the position for his confidential assistant, Priscilla Ong, whom he
considered efficient and competent on the job, albeit without a college degree. The respondent was aware of the appointee’s
lack of qualification which is precisely the reason why he requested for an exemption from the requirements of the MC No. 38 s.
1993, particularly on the educational requirement of appointees to confidential staff positions.
On November 2, 1995, the petitioner granted the respondent’s request and stated that the appointment of Ong may be approved
under a coterminous temporary status.18
The task of the petitioner is to insure that the appointee has all the qualifications for the position; otherwise it disapproves the
appointment.19 In this case, the petitioner approved the appointment of Ong under a coterminous temporary status; coterminous,
because the appointment shall only be during the tenure of the appointing power; and temporary, because the appointee did not
meet all the requirements for the position. As such, the appointment could be recalled anytime. The petitioner took into account
the fact that Ong was then enrolled in CAP College, Makati City and had 65 units credited to her leading to a four-year course in
Bachelor of Science in Business Administration, and that she just needed 61 units more to complete the same.
Under Section 4, Rule V of the Omnibus Rules, Ong’s appointment is in order, viz:
Except as otherwise provided herein, a person who meets all the requirements of the position including the appropriate
civil service eligibility shall be appointed to a position in the first and second levels. However, when the immediate filling
of a vacancy becomes necessary, taking into account the public interest, and a person with an appropriate civil service
eligibility is not actually and immediately available, a person without the appropriate civil service eligibility but who meets
the other requirements of the position may be appointed. His appointment shall be temporary for a period of not more
than twelve (12) months and he may be replaced at any time with one who has an appropriate civil service eligibility.
In approving the appointment of Ong, the petitioner took into account the exigency and urgency of filling up the position of
Executive Assistant, as embodied in the letter of the respondent for exemption from MC No. 38:
Our request for exemption from MC # 38 series of 1993 is anchored on the fact that I have no regular holder of an
Executive Assistant, although it is included in the POEA budget. As earlier mentioned in our letter-request, as the
administrationship of POEA keeps on changing, the Executive Assistant post remains attached to another employee
who can not be asked to vacate the post because of the security of tenure of the incumbent at the time the Executive
Assistant post was declared confidential in nature. We recognize and support the reason behind the promulgation of
CSC MC # 38 series 1993. However, please consider the circumstances behind this request for exemption. Ms. Ong
has been the holder of the position since my appointment last July 1992 under the Ramos government.
May I reiterate that the position of Ms. Ong is temporary in nature and co-terminous with my term. Moreover, she is now
enrolled at the CAP College taking up BS in Business Administration.20
The respondent reiterated the urgency of Ong’s appointment in his letter-request for the payment of Ong’s salary:
… Please note that the Office of the Administrator is the center of all communications coming in and out of POEA as
well as the focal point of all major activities whether internal or external concerns. As such, the smooth operations of
this office would not have been possible without the able and dedication of Ms. Ong who faithfully discharged her
gargantuan duties as Executive Assistant to the highest official of POEA. It would be an injustice to Ms. Ong if she is not
properly compensated for a job very well done especially in such a sensitive position. 21
With the foregoing, it can not be said that for want of a college degree as required under MC No. 38, s. 1993 for
confidential/personal positions, Ong’s appointment was in contravention of the CSC Law and its rules. While it is conceded that
the respondent intended the appointment of Ong to be contractual only, the petitioner approved the same in Resolution No.
956978, under a Coterminous-Temporary status. The appointment of Ong on July 1, 1995, is, therefore, valid.
We reject the petitioner’s contention that Ong’s appointment was invalid since the respondent appointed her to the position
without first securing an "authority to fill" as mandated by the second to the last paragraph of Section 3 of Rep. Act No. 7430.
The said provision reads:
SECTION 3. Attrition. – Within five (5) years from the approval of the Act, no appointment shall be made to fill
vacated positions in any government office as a result of resignation, retirement, dismissal, death or transfer to
another office of an officer or employee: Provided, however, That this prohibition shall not apply in the following
instances:
(a) Where the position is head of a primary organic unit such as chief of division;
(b) Where the position is the lone position in the organizational unit and it corresponds to a particular expertise
that is intrinsic to the desired basic capability of the unit concerned;
(c) Where the positions are basic positions for the initial operations of newly created or activated agencies or, in
the case of other agencies, where the positions are vital and necessary for the continued and efficient
operation of said agencies;
(d) Where the positions are difficult to fill considering the qualifications required therefore, as in the case of
doctors, lawyers and other professionals;
(e) Where the positions are found in agencies declared to be understaffed;
(f) Positions in Congress or in the Judiciary;
(g) Appointments or designations extended by the President;
(h) Where the positions are found in local government units;
(i) Teaching personnel; and
(j) Where the replacement come from existing employees.
Provided, further, That the exemptions from this prohibition shall require authorization by the Civil Service
Commission; Provided, finally, That no appointment shall be issued by the appointing authority nor approved by
the Civil Service Commission without said authorization.22
Appointments made in violation of this Act shall be null and void.
In CSC Resolution No. 974094, the petitioner denied the respondent’s motion for the POEA to pay Ong’s salary based on the
second to the last paragraph of Section 3, viz:
The Commission further finds no merit in the request because of the mandatory provision of Republic Act 7430 (Attrition
Law) which states as follows:
No appointment shall be made to fill up a vacancy unless an authority has been granted by the Commission.23
But even a cursory reading of Section 3 of Rep. Act No. 7430 will readily show that it applies only to appointments to fill
vacant position in a government office as a result of resignation, retirement, dismissal, death, or transfer to another
office of an officer or employee within five years from the approval of the law. Under the law, attrition is defined as the
reduction of personnel as a result of resignation, retirement, dismissal in accordance with existing laws, death or
transfer to another office.24
The appointment of Ong to the position of the Executive Assistant IV in the Office of the respondent is not covered by Rep. Act
No. 7430 because Ong was appointed to a newly-created position as part of the confidential/personal staff of the respondent.
The position was approved by the DBM. The petitioner attested the appointment as coterminous temporary. The position to
which Ong was appointed was not rendered vacant as a result of the resignation, retirement, dismissal, death or transfer of an
employee to another office, as provided by the law. Thus, the petitioner cannot argue that the respondent violated the Attrition
Law in appointing Ong.
The law must not be read in truncated parts; its provisions must be read in relation to the whole law. It is the cardinal rule in
statutory construction that a statute’s clauses and phrases must not be taken as detached and isolated expressions, but the
whole and every part thereof must be considered in fixing the meaning of any of its parts in order to produce a harmonious
whole.25 Every part of the statute must be interpreted with reference to the context, i.e., that every part of the statute must be
considered together with other parts of the statute and kept subservient to the general intent of the whole enactment.26
We find the respondent’s justification for the failure of the POEA to include Ong’s appointment in its ROPA for July 1995 as
required by CSC Memorandum Circular No. 27, Series of 1994 to be in order. The records show that the POEA did not include
the contractual appointment of Ong in its July ROPA because its request for exemption from the educational requisite for
confidential staff members provided in MC No. 38 had yet been resolved by the CSC. The resolution of the petitioner granting
such request was received only in November, 1995. The POEA, thereafter, reported the appointment in its November, 1995
ROPA.
Having been validly appointed to the position of Executive Assistant IV in the Office of the respondent, Ong is a de jure officer
and not a de facto officer as held by the Court of Appeals. The broad definition of what constitutes an officer de facto was
formulated by Lord Holt in Parker v. Kent,27 and reiterated by Lord Ellenborough and full King’s Bench in 1865 in Rex v. Bedford
Level,28 "One who has the reputation of being the officer he assumes and yet is not a good officer in point of law." A de
facto officer is one who is in possession of the office and discharging its duties under color of authority. 29 By color of authority is
meant that derived from an election or appointment, however irregular or informal, so that the incumbent is not a mere volunteer.
The difference between the basis of the authority of a de jure officer and that of a de facto officer is that one rests on right, the
other on reputation. It may be likened to the difference between character and reputation. One is the truth of a man, the other is
what is thought of him."30 It is the color of authority, not the color of title that distinguishes an officer de facto from a
usurper.31 Being a de jure officer, Ong is entitled to receive all the salaries and emoluments appertaining to the position.32
Irrefragably, Ong assumed the position and discharged her functions as Executive Assistant IV on July 1, 1995. Thenceforth,
she was entitled to the payment of her salary, as provided for in Section 10 of Rule V of the Omnibus Rules of the Civil Service
Commission on the matter of Appointments, viz:
An appointment issued in accordance with pertinent laws and rules shall take effect immediately upon its issuance by
the appointing authority, and if the appointee has assumed the duties of the position, he shall be entitled to receive his
salary at once, without awaiting the approval of his appointment by the Commission. The appointment shall remain
effective until disapproved by the Commission. In no case shall an appointment take effect earlier than the date of its
issuance.33
MC No. 38, s. 1993, likewise reads:
7. Effectivity of Appointment
a. The effectivity of an appointment shall be the date of actual assumption by the appointee but not earlier than
the date of issuance of the appointment, which is the date of signing by the appointing authority.
b. No appointment shall be made earlier than the date of issuance, except in the case of change of status in
view of qualifying in written examination, the effectivity of which is the date of release of the result of the
examination. However, the issuance of such appointments shall be within the period of the temporary
appointment or provided the temporary appointment has not yet expired…
Moreover, the Court of Appeals took note of CSC Resolution No. 953263 dated May 23, 1995 which states, thus:
… If the appointment was disapproved on grounds which do not constitute a violation of the civil service law,
such as the failure of the appointee to meet the Qualification Standards (QS) prescribed for the position, the
same is considered effective until disapproved by the Commission or any of its regional or field offices.
The appointee is meanwhile entitled to payment of salaries from the government. Furthermore, if a
motion for reconsideration or an appeal from the disapproval is seasonably filed with the proper office the
appointment is still considered to be effective. The disapproval becomes final only after the same is affirmed by
the Commission.34
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed Decision of the Court of Appeals, insofar as it is
consistent with this Decision, is AFFIRMED.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 186616 November 20, 2009
COMMISSION ON ELECTIONS, Petitioner,

vs.
CONRADO CRUZ, SANTIAGO P. GO, RENATO F. BORBON, LEVVINO CHING, CARLOS C. FLORENTINO, RUBEN G.
BALLEGA, LOIDA ALCEDO, MARIO M. CAJUCOM, EMMANUEL M. CALMA, MANUEL A. RAYOS, WILMA L. CHUA,
EUFEMIO S. ALFONSO, JESUS M. LACANILAO, BONIFACIO N. ALCAPA, JOSE H. SILVERIO, RODRIGO DEVELLES,
NIDA R. PAUNAN, MARIANO B. ESTUYE, JR., RAFAEL C. AREVALO, ARTURO T. MANABAT, RICARDO O. LIZARONDO,
LETICIA C. MATURAN, RODRIGO A. ALAYAN, LEONILO N. MIRANDA, DESEDERIO O. MONREAL, FRANCISCO M.
BAHIA, NESTOR R. FORONDA, VICENTE B. QUE, JR., AURELIO A. BILUAN, DANILO R. GATCHALIAN, LOURDES R.
DEL MUNDO, EMMA O. CALZADO, FELIMON DE LEON, TANY V. CATACUTAN, AND CONCEPCION P.
JAO, Respondents.
DECISION
BRION, J.:
We resolve in this Decision the constitutional challenge, originally filed before the Regional Trial Court of Caloocan City, Branch
128 (RTC), against the following highlighted portion of Section 2 of Republic Act (RA) No. 9164 (entitled "An Act Providing for
Synchronized Barangay and Sangguniang Kabataan Elections, amending RA No. 7160, as amended, otherwise known as the
Local Government Code of 1991"):
Sec. 2. Term of Office. – The term of office of all barangay and sangguniang kabataan officials after the effectivity of this Act
shall be three (3) years.
No barangay elective official shall serve for more than three (3) consecutive terms in the same position: Provided, however, That
the term of office shall be reckoned from the 1994 barangay elections. Voluntary renunciation of office for any length of time
shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected.
The RTC granted the petition and declared the challenged proviso constitutionally infirm. The present petition, filed by the
Commission on Elections (COMELEC), seeks a review of the RTC decision. 1
THE ANTECEDENTS
Before the October 29, 2007 Synchronized Barangay and Sangguniang Kabataan (SK) Elections, some of the then incumbent
officials of several barangays of Caloocan City2 filed with the RTC a petition for declaratory relief to challenge the
constitutionality of the above-highlighted proviso, based on the following arguments:
I. The term limit of Barangay officials should be applied prospectively and not retroactively.
II. Implementation of paragraph 2 Section 2 of RA No. 9164 would be a violation of the equal protection of the law.
III. Barangay officials have always been apolitical.
The RTC agreed with the respondents’ contention that the challenged proviso retroactively applied the three-term limit
for barangay officials under the following reasoning:
When the Local Government Code of 1991 took effect abrogating all other laws inconsistent therewith, a different term was
ordained. Here, this Court agrees with the position of the petitioners that Section 43 of the Code specifically
exempted barangay elective officials from the coverage of the three (3) consecutive term limit rule considering that the provision
applicable to these (sic) class of elective officials was significantly separated from the provisions of paragraphs (a) and (b)
thereof. Paragraph (b) is indeed intended to qualify paragraph (a) of Section 43 as regards to (sic) all local elective officials
except barangay officials. Had the intention of the framers of the Code is (sic) to include barangay elective officials, then no
excepting proviso should have been expressly made in paragraph (a) thereof or, by implication, the contents of paragraph (c)
should have been stated ahead of the contents of paragraph (b).
xxxx
Clearly, the intent of the framers of the constitution (sic) is to exempt the barangay officials from the three (3) term limits (sic)
which are otherwise applicable to other elected public officials from the Members of the House of Representatives down to the
members of the sangguniang bayan/panlungsod. It is up for the Congress whether the three (3) term limit should be applied by
enacting a law for the purpose.
The amendment introduced by R.A. No. 8524 merely increased the term of office of barangay elective officials from three (3)
years to five (5) years. Like the Local Government Code, it can be noted that no consecutive term limit for the election
of barangay elective officials was fixed therein.
The advent of R.A. 9164 marked the revival of the consecutive term limit for the election of barangay elective officials after the
Local Government Code took effect. Under the assailed provision of this Act, the term of office of barangay elective officials
reverted back to three (3) years from five (5) years, and, this time, the legislators expressly declared that no barangay elective
official shall serve for more than three (3) consecutive terms in the same position. The petitioners are very clear that they are not
assailing the validity of such provision fixing the three (3) consecutive term limit rule for the election of barangay elective officials
to the same position. The particular provision the constitutionality of which is under attack is that portion providing for the
reckoning of the three (3) consecutive term limit of barangay elective officials beginning from the 1994 barangay elections.
xxx
Section 2, paragraph 2 of R.A. 9164 is not a mere restatement of Section 43(c) of the Local Government Code. As discussed
above, Section 43(c) of the Local Government Code does not provide for the consecutive term limit rule of barangay elective
officials. Such specific provision of the Code has in fact amended the previous enactments (R.A. 6653 and R.A. 6679) providing
for the consecutive term limit rule of barangay elective officials. But, such specific provision of the Local Government Code was
amended by R.A. 9164, which reverted back to the previous policy of fixing consecutive term limits of barangay elective
officials." 3
In declaring this retroactive application unconstitutional, the RTC explained that:
By giving a retroactive reckoning of the three (3) consecutive term limit rule for barangay officials to the
1994 barangay elections, Congress has violated not only the principle of prospective application of statutes but also the equal
protection clause of the Constitution inasmuch as the barangay elective officials were singled out that their consecutive term limit
shall be counted retroactively. There is no rhyme or reason why the consecutive limit for these barangay officials shall be
counted retroactively while the consecutive limit for other local and national elective officials are counted prospectively. For if the
purpose of Congress is [sic] to classify elective barangay officials as belonging to the same class of public officers whose term of
office are limited to three (3) consecutive terms, then to discriminate them by applying the proviso retroactively violates the
constitutionally enshrined principle of equal protection of the laws.
Although the Constitution grants Congress the power to determine such successive term limit of barangay elective officials, the
exercise of the authority granted shall not otherwise transgress other constitutional and statutory privileges.
This Court cannot subscribe to the position of the respondent that the legislature clearly intended that the provision of RA No.
9164 be made effective in 1994 and that such provision is valid and constitutional. If we allow such premise, then the term of
office for those officials elected in the 1997 barangay elections should have ended in year 2000 and not year 2002 considering
that RA No. 9164 provides for a three-year term of barangay elective officials. The amendment introduced by R.A. No. 8524
would be rendered nugatory in view of such retroactive application. This is absurd and illusory.
True, no person has a vested right to a public office, the same not being property within the contemplation of constitutional
guarantee. However, a cursory reading of the petition would show that the petitioners are not claiming vested right to their office
but their right to be voted upon by the electorate without being burdened by the assailed provision of the law that, in effect,
rendered them ineligible to run for their incumbent positions. Such right to run for office and be voted for by the electorate is the
right being sought to be protected by assailing the otherwise unconstitutional provision.
Moreover, the Court likewise agrees with the petitioners that the law violated the one-act-one subject rule embodied in the
Constitution. x x x x The challenged law’s title is "AN ACT PROVIDING FOR THE
SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS, AMENDING REPUBLIC ACT 7160
OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991 AND FOR OTHER PURPOSES." x x x x
xxxx
To this court, the non-inclusion in the title of the act on the retroactivity of the reckoning of the term limits posed a serious
constitutional breach, particularly on the provision of the constitution [sic] that every bill must embrace only one subject to be
expressed in the title thereof.
x x x the Court is of the view that the affected barangay officials were not sufficiently given notice that they were already
disqualified by a new act, when under the previous enactments no such restrictions were imposed.
Even if this Court would apply the usual test in determining the sufficiency of the title of the bill, the challenged law would still be
insufficient for how can a retroactivity of the term limits be germane to the synchronization of an election x x x x.4
The COMELEC moved to reconsider this decision but the RTC denied the motion. Hence, the present petition on a pure
question of law.
The Petition
The COMELEC takes the position that the assailed law is valid and constitutional. RA No. 9164 is an amendatory law to RA No.
7160 (the Local Government Code of 1991 or LGC) and is not a penal law; hence, it cannot be considered an ex post facto law.
The three-term limit, according to the COMELEC, has been specifically provided in RA No. 7160, and RA No. 9164 merely
restated the three-term limitation. It further asserts that laws which are not penal in character may be applied retroactively when
expressly so provided and when it does not impair vested rights. As there is no vested right to public office, much less to an
elective post, there can be no valid objection to the alleged retroactive application of RA No. 9164.
The COMELEC also argues that the RTC’s invalidation of RA No. 9164 essentially involves the wisdom of the law – the aspect
of the law that the RTC has no right to inquire into under the constitutional separation of powers principle. The COMELEC lastly
argues that there is no violation of the one subject-one title rule, as the matters covered by RA No. 9164 are related; the
assailed provision is actually embraced within the title of the law.
THE COURT’S RULING
We find the petition meritorious. The RTC legally erred when it declared the challenged proviso unconstitutional.
Preliminary Considerations
We find it appropriate, as a preliminary matter, to hark back to the pre-1987 Constitution history of the barangay political system
as outlined by this Court in David v. COMELEC,5 and we quote:
As a unit of government, the barangay antedated the Spanish conquest of the Philippines. The word "barangay" is derived from
the Malay "balangay," a boat which transported them (the Malays) to these shores. Quoting from Juan de Plasencia, a
Franciscan missionary in 1577, Historian Conrado Benitez wrote that the barangay was ruled by a dato who exercised absolute
powers of government. While the Spaniards kept the barangay as the basic structure of government, they stripped
the dato or rajah of his powers. Instead, power was centralized nationally in the governor general and locally in
the encomiendero and later, in the alcalde mayor and the gobernadorcillo. The dato or rajah was much later renamed cabeza de
barangay, who was elected by the local citizens possessing property. The position degenerated from a title of honor to that of a
"mere government employee. Only the poor who needed a salary, no matter how low, accepted the post."
After the Americans colonized the Philippines, the barangays became known as "barrios." For some time, the laws governing
barrio governments were found in the Revised Administrative Code of 1916 and later in the Revised Administrative Code of
1917. Barrios were granted autonomy by the original Barrio Charter, RA 2370, and formally recognized as quasi-municipal
corporations by the Revised Barrio Charter, RA 3590. During the martial law regime, barrios were "declared" or renamed
"barangays" -- a reversion really to their pre-Spanish names -- by PD. No. 86 and PD No. 557. Their basic organization and
functions under RA 3590, which was expressly "adopted as the Barangay Charter," were retained. However, the titles of the
officials were changed to "barangay captain," "barangay councilman," "barangay secretary" and "barangay treasurer."
Pursuant to Sec. 6 of Batas Pambansa Blg. 222, "a Punong Barangay (Barangay Captain) and
six Kagawads ng Sangguniang Barangay (Barangay Councilmen), who shall constitute the presiding officer and members of
the Sangguniang Barangay (Barangay Council) respectively" were first elected on May 17, 1982. They had a term of six years
which began on June 7, 1982.
The Local Government Code of 1983 also fixed the term of office of local elective officials at six years. Under this Code, the
chief officials of the barangay were the punong barangay, six elective sangguniang barangay members,
the kabataang barangay chairman, a barangay secretary and a barangay treasurer.
B.P. Blg. 881, the Omnibus Election Code, reiterated that barangay officials "shall hold office for six years," and stated that their
election was to be held "on the second Monday of May nineteen hundred and eighty eight and on the same day every six years
thereafter." [Emphasis supplied.]
The 1987 Philippine Constitution extended constitutional recognition to barangays under Article X, Section 1 by
specifying barangays as one of the territorial and political subdivisions of the country, supplemented by Section 8 of the same
Article X, which provides:
SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.
[Emphasis supplied.]
The Constitutional Commission’s deliberations on Section 8 show that the authority of Congress to legislate relates not only to
the fixing of the term of office of barangay officials, but also to the application of the three-term limit. The following deliberations
of the Constitutional Commission are particularly instructive on this point:
MR. NOLLEDO: One clarificatory question, Madam President. What will be the term of the office of barangay officials as
provided for?
MR. DAVIDE: As may be determined by law.
MR. NOLLEDO: As provided for in the Local Government Code?
MR. DAVIDE: Yes.
xxx xxx xxx
THE PRESIDENT: Is there any other comment? Is there any objection to this proposed new section as submitted by
Commissioner Davide and accepted by the Committee?
MR. RODRIGO: Madam President, does this prohibition to serve for more than three consecutive terms apply
to barangay officials?
MR. DAVIDE: Madam President, the voting that we had on the terms of office did not include the barangay officials
because it was then the stand of the Chairman of the Committee on Local Governments that the term
of barangay officials must be determined by law. So it is now for the law to determine whether the restriction on the
number of reelections will be included in the Local Government Code.
MR. RODRIGO: So that is up to Congress to decide.
MR. DAVIDE: Yes.
MR. RODRIGO: I just wanted that clear in the record."6 [Emphasis supplied.]
After the effectivity of the 1987 Constitution, the barangay election originally scheduled by Batas Pambansa Blg. 8817 on the
second Monday of May 1988 was reset to "the second Monday of November 1988 and every five years thereafter by RA No.
6653."8 Section 2 of RA No. 6653 changed the term of office of barangay officials and introduced a term limitation as follows:
SEC. 2. The term of office of barangay officials shall be for five (5) years from the first day of January following their
election. Provided, however, That no kagawad shall serve for more than two (2) consecutive terms. [Emphasis supplied]
Under Section 5 of RA No. 6653, the punong barangay was to be chosen by seven kagawads from among themselves, and they
in turn, were to be elected at large by the barangay electorate. The punong barangay, under Section 6 of the law, may be
recalled for loss of confidence by an absolute majority vote of the Sangguniang Barangay, embodied in a resolution that shall
necessarily include the punong barangay’s successor.
The election date set by RA No. 6653 on the second Monday of November 1988 was postponed yet again to March 28, 1989 by
RA No. 6679 whose pertinent provision states:
SEC. 1. The elections of barangay officials set on the second Monday of November 1988 by Republic Act No. 6653 are hereby
postponed and reset to March 28, 1989. They shall serve a term which shall begin on the first day of May 1989 and ending on
the thirty-first day of May 1994.
There shall be held a regular election of barangay officials on the second Monday of May 1994 and on the same day every five
(5) years thereafter. Their term shall be for five (5) years which shall begin on the first day of June following the election and until
their successors shall have been elected and qualified: Provided, That no barangay official shall serve for more than three (3)
consecutive terms.
The barangay elections shall be nonpartisan and shall be conducted in an expeditious and inexpensive manner.
Significantly, the manner of election of the punong barangay was changed –
Section 5 of the law provided that while the seven kagawads were to be elected by the registered voters of the barangay, "(t)he
candidate who obtains the highest number of votes shall be the punong barangay and in the event of a tie, there shall be a
drawing of lots under the supervision of the Commission on Elections."
More than two (2) years after the 1989 barangay elections, RA No. 7160 (the LGC) introduced the following changes in the law:
SEC. 41. Manner of Election. -- (a) The x x x punong barangay shall be elected at large x x x by the qualified voters" therein.
SEC. 43. Term of Office. - (a) The term of office of all local elective officials elected after the effectivity of this Code shall be
three (3) years, starting from noon of June 30, 1992 or such date as may be provided for by law, except that of
elective barangay officials: Provided, That all local officials first elected during the local elections immediately following the
ratification of the 1987 Constitution shall serve until noon of June 30, 1992.
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for
the full term for which the elective official concerned was elected.
(c) The term of office of barangay officials and members of the sangguniang kabataan shall be for three (3) years, which
shall begin after the regular election of barangay officials on the second Monday of May 1994.
SEC. 387. Chief Officials and Offices. -- (a) There shall be in each barangay a punong barangay, seven (7) sangguniang
barangay members, the sangguniang kabataan chairman, a barangay secretary and a barangay treasurer.
xxxxxxxxx
SEC. 390. Composition. -- The Sangguniang barangay, the legislative body of the barangay, shall be composed of the punong
barangay as presiding officer, and the seven (7) regular sanguniang barangay members elected at large and the sanguniang
kabataan chairman as members. [Emphasis supplied.]
This law started the direct and separate election of the punong barangay by the "qualified voters" in the barangay and not by the
seven (7) kagawads from among themselves.9
Subsequently or on February 14, 1998, RA No. 8524 changed the three-year term of office of barangay officials under Section
43 of the LGC to five (5) years. On March 19, 2002, RA No. 9164 introduced the following significant changes: (1) the term of
office of barangay officials was again fixed at three years on the reasoning that the barangay officials should not serve a longer
term than their supervisors;10 and (2) the challenged proviso, which states that the 1994 election shall be the reckoning point for
the application of the three-term limit, was introduced. Yet another change was introduced three years after or on July 25, 2005
when RA No. 9340 extended the term of the then incumbent barangay officials – due to expire at noon of November 30, 2005
under RA No. 9164 – to noon of November 30, 2007. The three-year term limitation provision survived all these changes.
Congress’ Plenary Power to Legislate Term Limits for Barangay Officials and Judicial Power
In passing upon the issues posed to us, we clarify at the outset the parameters of our powers.
As reflected in the above-quoted deliberations of the 1987 Constitution, Congress has plenary authority under the Constitution to
determine by legislation not only the duration of the term of barangay officials, but also the application to them of a consecutive
term limit. Congress invariably exercised this authority when it enacted no less than six (6) barangay-related laws since 1987.
Through all these statutory changes, Congress had determined at its discretion both the length of the term of office
of barangay officials and their term limitation. Given the textually demonstrable commitment by the 1987 Constitution to
Congress of the authority to determine the term duration and limition of barangay officials under the Constitution, we consider it
established that whatever Congress, in its wisdom, decides on these matters are political questions beyond the pale of judicial
scrutiny,11 subject only to the certiorari jurisdiction of the courts provided under Section 1, Article VIII of the Constitution and to
the judicial authority to invalidate any law contrary to the Constitution.12
Political questions refer "to those questions which, under the Constitution, are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary authority has been delegated to the legislative or executive branch of the
government; it is concerned with issues dependent upon the wisdom, not legality of a particular measure."13 These questions,
previously impervious to judicial scrutiny can now be inquired into under the limited window provided by Section 1, Article VIII.
Estrada v. Desierto14 best describes this constitutional development, and we quote:
To a great degree, the 1987 Constitution has narrowed the reach of the political doctrine when it expanded the power of judicial
review of this court 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 government. Heretofore, the judiciary has focused on the "thou shalt not’s" of the Constitution
directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. In sync
and symmetry with this intent are other provisions of the 1987 Constitution trimming the so called political thicket. xxxx
Thus, we can inquire into a congressional enactment despite the political question doctrine, although the window provided us is
narrow; the challenge must show grave abuse of discretion to justify our intervention.
Other than the Section 1, Article VIII route, courts can declare a law invalid when it is contrary to any provision of the
Constitution. This requires the appraisal of the challenged law against the legal standards provided by the Constitution, not on
the basis of the wisdom of the enactment. To justify its nullification, the breach of the Constitution must be clear and
unequivocal, not a doubtful or equivocal one, as every law enjoys a strong presumption of constitutionality. 15 These are the
hurdles that those challenging the constitutional validity of a law must overcome.
The present case, as framed by the respondents, poses no challenge on the issue of grave abuse of discretion. The legal issues
posed relate strictly to compliance with constitutional standards. It is from this prism that we shall therefore resolve this case.
The Retroactive Application Issue
a. Interpretative / Historical Consideration
The respondents’ first objection to the challenged proviso’s constitutionality is its purported retroactive application of the three-
term limit when it set the 1994 barangay elections as a reckoning point in the application of the three-term limit.
The respondents argued that the term limit, although present in the previous laws, was not in RA No. 7160 when it amended all
previous barangay election laws. Hence, it was re-introduced for the first time by RA No. 9164 (signed into law on March 19,
2002) and was applied retroactively when it made the term limitation effective from the 1994 barangay elections. As the
appealed ruling quoted above shows, the RTC fully agreed with the respondents’ position.
Our first point of disagreement with the respondents and with the RTC is on their position that a retroactive application of the
term limitation was made under RA No. 9164. Our own reading shows that no retroactive application was made because the
three-term limit has been there all along as early as the second barangay law (RA No. 6679) after the 1987 Constitution took
effect; it was continued under the LGC and can still be found in the current law. We find this obvious from a reading of the
historical development of the law.
The first law that provided a term limitation for barangay officials was RA No. 6653 (1988); it imposed a two-consecutive term
limit. After only six months, Congress, under RA No. 6679 (1988), changed the two-term limit by providing for a three-
consecutive term limit. This consistent imposition of the term limit gives no hint of any equivocation in the congressional intent to
provide a term limitation. Thereafter, RA No. 7160 – the LGC – followed, bringing with it the issue of whether it provided, as
originally worded, for a three-term limit for barangay officials. We differ with the RTC analysis of this issue.
Section 43 is a provision under Title II of the LGC on Elective Officials. Title II is divided into several chapters dealing with a wide
range of subject matters, all relating to local elective officials, as follows: a. Qualifications and Election (Chapter I); b. Vacancies
and Succession (Chapter II), c. Disciplinary Actions (Chapter IV) and d. Recall (Chapter V). Title II likewise contains a chapter
on Local Legislation (Chapter III).
These Title II provisions are intended to apply to all local elective officials, unless the contrary is clearly provided. A contrary
application is provided with respect to the length of the term of office under Section 43(a); while it applies to all local elective
officials, it does not apply to barangay officials whose length of term is specifically provided by Section 43(c). In contrast to this
clear case of an exception to a general rule, the three-term limit under Section 43(b) does not contain any exception; it applies to
all local elective officials who must perforce include barangay officials.
An alternative perspective is to view Sec. 43(a), (b) and (c) separately from one another as independently standing and self-
contained provisions, except to the extent that they expressly relate to one another. Thus, Sec. 43(a) relates to the term of local
elective officials, except barangay officials whose term of office is separately provided under Sec. 43(c). Sec. 43(b), by its
express terms, relates to all local elective officials without any exception. Thus, the term limitation applies to all local elective
officials without any exclusion or qualification.
Either perspective, both of which speak of the same resulting interpretation, is the correct legal import of Section 43 in the
context in which it is found in Title II of the LGC.1avvphi1
To be sure, it may be argued, as the respondents and the RTC did, that paragraphs (a) and (b) of Section 43 are the general law
for elective officials (other than barangay officials); and paragraph (c) is the specific law on barangay officials, such that the
silence of paragraph (c) on term limitation for barangay officials indicates the legislative intent to exclude barangay officials from
the application of the three-term limit. This reading, however, is flawed for two reasons.
First, reading Section 43(a) and (b) together to the exclusion of Section 43(c), is not justified by the plain texts of these
provisions. Section 43(a) plainly refers to local elective officials, except elective barangay officials. In comparison, Section 43(b)
refers to all local elective officials without exclusions or exceptions. Their respective coverages therefore vary so that one cannot
be said to be of the same kind as the other. Their separate topics additionally strengthen their distinction; Section 43(a) refers
to the term of office while Section 43(b) refers to the three-term limit. These differences alone indicate that Sections 43(a) and
(b) cannot be read together as one organic whole in the way the RTC suggested. Significantly, these same distinctions apply
between Sec. 43(b) and (c).
Second, the RTC interpretation is flawed because of its total disregard of the historical background of Section 43(c) – a
backdrop that we painstakingly outlined above.
From a historical perspective of the law, the inclusion of Section 43(c) in the LGC is an absolute necessity to clarify the length of
term of barangay officials. Recall that under RA No. 6679, the term of office of barangay officials was five (5) years. The real
concern was how Section 43 would interface with RA No. 6679. Without a categorical statement on the length of the term of
office of barangay officials, a general three-year term for all local elective officials under Section 43(a), standing alone, may not
readily and completely erase doubts on the intended abrogation of the 5-year term for barangay officials under RA No. 6679.
Thus, Congress added Section 43(c) which provided a categorical three-year term for these officials. History tells us, of course,
that the unequivocal provision of Section 43(c) notwithstanding, an issue on what is the exact term of office of barangay officials
was still brought to us via a petition filed by no less than the President of the Liga ng Mga Barangay in 1997. We fully resolved
the issue in the cited David v. Comelec.
Section 43(c) should therefore be understood in this context and not in the sense that it intended to provide the complete rule for
the election of barangay officials, so that in the absence of any term limitation proviso under this subsection, no term limitation
applies to barangay officials. That Congress had the LGC’s three-term limit in mind when it enacted RA No. 9164 is clear from
the following deliberations in the House of Representatives (House) on House Bill No. 4456 which later became RA No. 9164:
MARCH 5, 2002:
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Majority Leader.
REP. ESCUDERO. Mr. Speaker, next to interpellate is the Gentleman from Zamboanga City. I ask that the Honorable Lobregat
be recognized.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). The Honorable Lobregat is recognized.
REP. LOBREGAT. Thank you very much, Mr. Speaker. Mr. Speaker, this is just …
REP. MACIAS. Willingly to the Gentleman from Zamboanga City.
REP. LOBREGAT. … points of clarification, Mr. Speaker, the term of office. It says in Section 4, "The term of office of all
Barangay and sangguniang kabataan officials after the effectivity of this Act shall be three years." Then it says,
"No Barangay elective official shall serve for more than three (3) consecutive terms in the same position."
Mr. Speaker, I think it is the position of the committee that the first term should be reckoned from election of what year, Mr.
Speaker?
REP. MACIAS. After the adoption of the Local Government Code, Your Honor. So that the first election is to be reckoned on,
would be May 8, 1994, as far as the Barangay election is concerned.
REP. LOBREGAT. Yes, Mr. Speaker. So there was an election in 1994.
REP. MACIAS. Then an election in 1997.
REP. LOBREGAT. There was an election in 1997. And there will be an election this year …
REP. LOBREGAT. … election this year.
REP. MACIAS. That is correct. This will be the third.
xxx xxx xxx
REP. SUMULONG. Mr. Speaker.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.) The Honorable Sumulong is recognized.
REP. SUMULONG. Again, with the permission of my Chairman, I would like to address the question of Congressman Lobregat.
THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Please proceed.
REP. SUMULONG. With respect to the three-year consecutive term limits of Barangay Captains that is not provided for in the
Constitution and that is why the election prior to 1991 during the enactment of the Local Government Code is not counted
because it is not in the Constitution but in the Local Government Code where the three consecutive term limits has been placed.
[Emphasis supplied.]
which led to the following exchanges in the House Committee on Amendments:
March 6, 2002
COMMITTEE ON AMENDMENTS
REP. GONZALES. May we now proceed to committee amendment, if any, Mr. Speaker.
THE DEPUTY SPEAKER (Rep. Gonzalez). The Chair recognizes the distinguished Chairman of the Committee on Suffrage and
Electoral Reforms.
REP. SYJUCO. Mr. Speaker, on page 2, line 7, after the word "position", substitute the period (.) and add the following:
PROVIDED HOWEVER THAT THE TERM OF OFFICE SHALL BE RECKONED FROM THE 1994 BARANGAY ELECTIONS.
So that the amended Section 4 now reads as follows:
"SEC. 4. Term of Office. – The term of office of all barangay and sangguniang kabataan officials after the effectivity of this Act
shall be three (3) years.
No barangay elective local official shall serve for more than three (3) consecutive terms in the same position COLON (:)
PROVIDED, HOWEVER, THAT THE TERM OF OFFICE SHALL BE RECKONED FROM THE 1994 BARANGAY ELECTIONS.
Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official was elected.
The House therefore clearly operated on the premise that the LGC imposed a three-term limit for barangay officials, and the
challenged proviso is its way of addressing any confusion that may arise from the numerous changes in the law.
All these inevitably lead to the conclusion that the challenged proviso has been there all along and does not simply retroact the
application of the three-term limit to the barangay elections of 1994. Congress merely integrated the past statutory changes into
a seamless whole by coming up with the challenged proviso.
With this conclusion, the respondents’ constitutional challenge to the proviso – based on retroactivity – must fail.
b. No Involvement of Any Constitutional Standard
Separately from the above reason, the constitutional challenge must fail for a more fundamental reason – the respondents’
retroactivity objection does not involve a violation of any constitutional standard.
Retroactivity of laws is a matter of civil law, not of a constitutional law, as its governing law is the Civil Code,16 not the
Constitution. Article 4 of the Civil Code provides that laws shall have no retroactive effect unless the contrary is provided. The
application of the Civil Code is of course self-explanatory – laws enacted by Congress may permissibly provide that they shall
have retroactive effect. The Civil Code established a statutory norm, not a constitutional standard.
The closest the issue of retroactivity of laws can get to a genuine constitutional issue is if a law’s retroactive application will
impair vested rights. Otherwise stated, if a right has already vested in an individual and a subsequent law effectively takes it
away, a genuine due process issue may arise. What should be involved, however, is a vested right to life, liberty or property, as
these are the ones that may be considered protected by the due process clause of the Constitution.1 a vv p h i 1
In the present case, the respondents never raised due process as an issue. But even assuming that they did, the respondents
themselves concede that there is no vested right to public office.17 As the COMELEC correctly pointed out, too, there is no
vested right to an elective post in view of the uncertainty inherent in electoral exercises.
Aware of this legal reality, the respondents theorized instead that they had a right to be voted upon by the electorate without
being burdened by a law that effectively rendered them ineligible to run for their incumbent positions. Again, the RTC agreed
with this contention.
We do not agree with the RTC, as we find no such right under the Constitution; if at all, this claimed right is merely a restatement
of a claim of vested right to a public office. What the Constitution clearly provides is the power of Congress to prescribe the
qualifications for elective local posts;18 thus, the question of eligibility for an elective local post is a matter for Congress, not for
the courts, to decide. We dealt with a strikingly similar issue in Montesclaros v. Commission on Elections 19 where we ruled that
SK membership – which was claimed as a property right within the meaning of the Constitution – is a mere statutory right
conferred by law. Montesclaros instructively tells us:
Congress exercises the power to prescribe the qualifications for SK membership. One who is no longer qualified because of an
amendment in the law cannot complain of being deprived of a proprietary right to SK membership. Only those who qualify as SK
members can contest, based on a statutory right, any act disqualifying them from SK membership or from voting in the SK
elections. SK membership is not a property right protected by the Constitution because it is a mere statutory right conferred by
law. Congress may amend at any time the law to change or even withdraw the statutory right.
A public office is not a property right. As the Constitution expressly states, a "[P]ublic office is a public trust." No one has a
vested right to any public office, much less a vested right to an expectancy of holding a public office. In Cornejo v. Gabriel,
decided in 1920, the Court already ruled:
Again, for this petition to come under the due process of law prohibition, it would be necessary to consider an office a
"property." It is, however, well settled x x x that a public office is not property within the sense of the constitutional
guaranties of due process of law, but is a public trust or agency. x x x The basic idea of the government x x x is that of a
popular representative government, the officers being mere agents and not rulers of the people, one where no one man or set of
men has a proprietary or contractual right to an office, but where every officer accepts office pursuant to the provisions of the law
and holds the office as a trust for the people he represents.
Petitioners, who apparently desire to hold public office, should realize from the very start that no one has a proprietary right to
public office. While the law makes an SK officer an ex-officio member of a local government legislative council, the law does not
confer on petitioners a proprietary right or even a proprietary expectancy to sit in local legislative councils. The constitutional
principle of a public office as a public trust precludes any proprietary claim to public office. Even the State policy directing "equal
access to opportunities for public service" cannot bestow on petitioners a proprietary right to SK membership or a proprietary
expectancy to ex-officio public offices.
Moreover, while the State policy is to encourage the youth’s involvement in public affairs, this policy refers to those who belong
to the class of people defined as the youth. Congress has the power to define who are the youth qualified to join the SK, which
itself is a creation of Congress. Those who do not qualify because they are past the age group defined as the youth cannot insist
on being part of the youth. In government service, once an employee reaches mandatory retirement age, he cannot invoke any
property right to cling to his office. In the same manner, since petitioners are now past the maximum age for membership in the
SK, they cannot invoke any property right to cling to their SK membership. [Emphasis supplied.]
To recapitulate, we find no merit in the respondents’ retroactivity arguments because: (1) the challenged proviso did not provide
for the retroactive application to barangay officials of the three-term limit; Section 43(b) of RA No. 9164 simply continued what
had been there before; and (2) the constitutional challenge based on retroactivity was not anchored on a constitutional standard
but on a mere statutory norm.
The Equal Protection Clause Issue
The equal protection guarantee under the Constitution is found under its Section 2, Article III, which provides: "Nor shall any
person be denied the equal protection of the laws." Essentially, the equality guaranteed under this clause is equality under the
same conditions and among persons similarly situated. It is equality among equals, not similarity of treatment of persons who
are different from one another on the basis of substantial distinctions related to the objective of the law; when things or persons
are different in facts or circumstances, they may be treated differently in law. 20
Appreciation of how the constitutional equality provision applies inevitably leads to the conclusion that no basis exists in the
present case for an equal protection challenge. The law can treat barangay officials differently from other local elective officials
because the Constitution itself provides a significant distinction between these elective officials with respect to length of term and
term limitation. The clear distinction, expressed in the Constitution itself, is that while the Constitution provides for a three-year
term and three-term limit for local elective officials, it left the length of term and the application of the three-term limit or any form
of term limitation for determination by Congress through legislation. Not only does this disparate treatment recognize substantial
distinctions, it recognizes as well that the Constitution itself allows a non-uniform treatment. No equal protection violation can
exist under these conditions.
From another perspective, we see no reason to apply the equal protection clause as a standard because the challenged proviso
did not result in any differential treatment between barangay officials and all other elective officials. This conclusion proceeds
from our ruling on the retroactivity issue that the challenged proviso does not involve any retroactive application.
Violation of the Constitutional
One Subject- One Title Rule
Every bill passed by the Congress shall embrace only one subject which shall be expressed in the title thereof. Fariñas v.
Executive Secretary21 provides the reasons for this constitutional requirement and the test for its application, as follows:
The proscription is aimed against the evils of the so-called omnibus bills and log-rolling legislation as well as surreptitious and/or
unconsidered encroaches. The provision merely calls for all parts of an act relating to its subject finding expression in its title.
To determine whether there has been compliance with the constitutional requirement that the subject of an act shall be
expressed in its title, the Court laid down the rule that –
Constitutional provisions relating to the subject matter and titles of statutes should not be so narrowly construed as to cripple or
impede the power of legislation. The requirement that the subject of an act shall be expressed in its title should receive a
reasonable and not a technical construction. It is sufficient if the title be comprehensive enough reasonably to include the
general object which a statute seeks to effect, without expressing each and every end and means necessary or convenient for
the accomplishing of that object. Mere details need not be set forth. The title need not be an abstract or index of the Act.
xxxx
x x x This Court has held that an act having a single general subject, indicated in the title, may contain any number of provisions,
no matter how diverse they may be, so long as they are not inconsistent with or foreign to the general subject, and may be
considered in furtherance of such subject by providing for the method and means of carrying out the general subject.
xxxx
x x x Moreover, the avowed purpose of the constitutional directive that the subject of a bill should be embraced in its title is to
apprise the legislators of the purposes, the nature and scope of its provisions, and prevent the enactment into law of matters
which have not received the notice, action and study of the legislators and the public.
We find, under these settled parameters, that the challenged proviso does not violate the one subject-one title rule.
First, the title of RA No. 9164, "An Act Providing for Synchronized Barangay and Sangguniang Kabataang Elections, amending
Republic Act No. 7160, as amended, otherwise known as the Local Government Code of 1991," states the law’s general subject
matter – the amendment of the LGC to synchronize the barangay and SK elections and for other purposes. To achieve
synchronization of the barangay and SK elections, the reconciliation of the varying lengths of the terms of office
of barangay officials and SK officials is necessary. Closely related with length of term is term limitation which defines the total
number of terms for which a barangay official may run for and hold office. This natural linkage demonstrates that term limitation
is not foreign to the general subject expressed in the title of the law.
Second, the congressional debates we cited above show that the legislators and the public they represent were fully informed of
the purposes, nature and scope of the law’s provisions. Term limitation therefore received the notice, consideration, and action
from both the legislators and the public.
Finally, to require the inclusion of term limitation in the title of RA No. 9164 is to make the title an index of all the subject matters
dealt with by law; this is not what the constitutional requirement contemplates.
WHEREFORE, premises considered, we GRANT the petition and accordingly AFFIRM the constitutionality of the challenged
proviso under Section 2, paragraph 2 of Republic Act No. 9164. Costs against the respondents.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 133495 September 3, 1998
BENJAMIN U. BORJA, JR., petitioner,

vs.
COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents.
MENDOZA, J.:
This case presents for determination the scope of the constitutional provision barring elective local officials, with the exception of
barangay officials, from serving more than three consecutive terms. In particular, the question is whether a vice-mayor who
succeeds to the office of mayor by operation of law and serves the remainder of the term is considered to have served a term in
that office for the purpose of the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for a term ending June 30, 1992.
On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11,
1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected
mayor for another term of three years ending June 30, 1998.1
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998
elections. Petitioner Benjamin U. Borja Jr., who was also a candidate for mayor, sought Capco's disqualification on the theory
that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be
ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and declared private
respondent Capco disqualified from running for reelection as mayor of Pateros. 2 However, on motion of private respondent the
COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998
elections. 3 The majority stated in its decision:
In both the Constitution and the Local Government Code, the three-term limitation refers to the term of office for
which the local official was elected. It made no reference to succession to an office to which he was not
elected. In the case before the Commission, respondent Capco was not elected to the position of Mayor in the
January 18, 1988 local elections. He succeeded to such office by operation of law and served for the unexpired
term of his predecessor. Consequently, such succession into office is not counted as one (1) term for purposes
of the computation of the three-term limitation under the Constitution and the Local Government Code.
Accordingly, private respondent was voted for in the elections. He received 16,558 votes against petitioner's 7,773 votes and
was proclaimed elected by the Municipal Board of Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated My 7, 1998, of the COMELEC and to seek a declaration
that private respondent is disqualified to serve another term as mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capco's service as mayor from September 2, 1989 to June 30, 1992 should be
considered as service for one full term, and since he thereafter served from 1992 to 1998 two more terms as mayor, he should
be considered to have served three consecutive terms within the contemplation of Art. X, §8 of the Constitution and §43(b) of the
Local Government Code. Petitioner stresses the fact that, upon the death of Mayor Cesar Borja on September 2, 1989, private
respondent became the mayor and thereafter served the remainder of the term. Petitioner argues that it is irrelevant that private
respondent became mayor by succession because the purpose of the constitutional provision in limiting the number of terms
elective local officials may serve is to prevent a monopolization of political power.
This contention will not bear analysis. Article X, §8 of the Constitution provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more than three consecutive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
This provision is restated in §43(b) of the Local Government Code (R.A. No. 7160):
Sec. 43. Term of Office. — . . .

(b) No local elective official shall serve for more than three (3) consecutive terms in the same position.
Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official concerned was elected. . . .
First, to prevent the establishment of political dynasties is not the only policy embodied in the constitutional provision in question.
The other policy is that of enhancing the freedom of choice of the people. To consider, therefore, only stay in office regardless of
how the official concerned came to that office — whether by election or by succession by operation of law — would be to
disregard one of the purposes of the constitutional provision in question.
Thus, a consideration of the historical background of Article X, §8 of the Constitution reveals that the members of the
Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with
preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia
that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials.
Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from
running for the same position in the of the succeeding election following the expiration of the third consecutive term. 4 Monsod
warned against "prescreening candidates [from] whom the people will choose" as a result of the proposed absolute
disqualification, considering that the draft constitution contained provisions "recognizing people's power." 5
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a temporary or a perpetual
disqualification on those who have served their terms in accordance with the limits on consecutive service as
decided by the Constitutional Commission. I would be very wary about this Commission exercising a sort of
omnipotent power in order to disqualify those who will already have served their terms from perpetuating
themselves in office. I think the Commission achieves its purpose in establishing safeguards against the
excessive accumulation of power as a result of consecutive terms. We do put a cap on consecutive service —
in the case of the President, six years, in the case of the Vice-President, unlimited; and in the case of the
Senators, one reelection. In the case of the Members of Congress, both from the legislative districts and from
the party list and sectoral representation, this is now under discussion and later on the policy concerning local
officials will be taken up by the Committee on Local Governments. The principle remains the same. I think we
want to prevent future situations where, as a result of continuous service and frequent reelections, officials from
the President down to the municipal mayor tend to develop a proprietary interest in their positions and to
accumulate those powers and perquisites that permit them to stay on indefinitely or to transfer these posts to
members of their families in a subsequent election. I think that is taken care of because we put a gap on the
continuity or the unbroken service of all of these officials. But where we now decide to put these prospective
servants of the people or politicians, if we want to use the coarser term, under a perpetual disqualification, I
have a feeling that we are taking away too much from the people, whereas we should be giving as much to the
people as we can in terms of their own freedom of choice. . . . 6
Other commissioners went on record against "perpetually disqualifying" elective officials who have served a certain number of
terms as this would deny the right of the people to choose. As Commissioner Yusup R. Abubakar asked, "why should we
arrogate unto ourselves the right to decide what the people want?" 7
Commissioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues to "allow the people to exercise
their own sense of proportion and [rely] on their own strength to curtail power when it overreaches itself." 8
Commissioner Teodoro C. Bacani stressed: "Why should we not leave [perpetual disqualification after serving a number of
terms] to the premise accepted by practically everybody here that our people are politically mature? Should we use this
assumption only when it is convenient for us, and not when it may also lead to a freedom of choice for the people and for
politicians who may aspire to serve them longer?" 9
Two ideas thus emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion
of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The
second is the idea of election, derived from the concern that the right of the people to choose those whom they wish to govern
them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials
concerned were serving by reason of election. This is clear from the following exchange in the Constitutional Commission
concerning term limits, now embodied in Art. VI, §§4 and 7 of the Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the
Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before — if the Gentlemen will remember — was: How
long will that period of rest be? Will it be one election which is three years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during
the election following the expiration of the first 12 years, whether such election will be on the third year or on
the sixth year thereafter, this particular member of the Senate can run. So, it is not really a period of hibernation
for six years. That was the Committee's stand. 10
Indeed a fundamental tenet of representative democracy is that the people should be allowed to choose those whom they
please to govern them. 11 To bar the election of a local official because he has already served three terms, although the first as a
result of succession by operation of law rather than election, would therefore be to violate this principle.
Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art. X, §8
contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of "the term
of office of elective local officials" and bars "such official[s]" from serving for more than three consecutive terms. The second
sentence, in explaining when an elective local official may be deemed to have served his full term of office, states that "voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the
full term for which he was elected." The term served must therefore be one "for which [the official concerned] was elected." The
purpose of this provision is to prevent a circumvention of the limitation on the number of terms an elective local official may
serve. Conversely, if he is not serving a term for which he was elected because he is simply continuing the service of the official
he succeeds, such official cannot be considered to have fully served the term notwithstanding his voluntary renunciation of office
prior to its expiration.
Reference is made to Commissioner Bernas' comment on Art. VI, §7, which similarly bars members of the House of
Representatives from serving for more than three terms. Commissioner Bernas states that "if one is elected Representative to
serve the unexpired term of another, that unexpired term, no matter how short, will be considered one term for the purpose of
computing the number of successive terms allowed." 12
This is actually based on the opinion expressed by Commissioner Davide in answer to a query of Commissioner Suarez: "For
example, a special election is called for a Senator, and the Senator newly elected would have to serve the unexpired portion of
the term. Would that mean that serving the unexpired portion of the term is already considered one term? So, half a term, which
is actually the correct statement, plus one term would disqualify the Senator concerned from running? Is that the meaning of this
provision on disqualification, Madam President?" Commissioner Davide said: "Yes, because we speak of "term," and if there is a
special election, he will serve only for the unexpired portion of that particular term plus one more term for the Senator and two
more terms for the Members of the Lower House." 13
There is a difference, however, between the case of a vice-mayor and that of a member of the House of Representatives who
succeeds another who dies, resigns, becomes incapacitated, or is removed from office. The vice-mayor succeeds to the
mayorship by operation of law. 14 On the other hand, the Representative is elected to fill the vacancy. 15 In a real sense,
therefore, such Representative serves a term for which he was elected. As the purpose of the constitutional provision is to limit
the right to be elected and to serve in Congress, his service of the unexpired term is rightly counted as his first term. Rather than
refute what we believe to be the intendment of Art. X, §8 with regard to elective local officials, the case of a Representative who
succeeds another confirms the theory.
Petitioner also cites Art. VII, §4 of the Constitution which provides for succession of the Vice-President to the Presidency in case
of vacancy in that office. After stating that "The President shall not be eligible for any reelection," this provision says that "No
person who has succeeded as President and has served as such for more than four years shall be qualified for election to the
same office at any time." Petitioner contends that, by analogy, the vice-mayor should likewise be considered to have served a
full term as mayor if he succeeds to the latter's office and serves for the remainder of the term.
The framers of the Constitution included such a provision because, without it, the Vice-President, who simply steps into the
Presidency by succession, would be qualified to run President even if he has occupied that office for more than four years. The
absence of a similar provision in Art. X, §8 on elective local officials throws in bold relief the difference between the two cases. It
underscores the constitutional intent to cover only the terms of office to which one may have been elected for purposes of the
three-term limit on local elective officials, disregarding for this purpose service by automatic succession.
There is another reason why the Vice-President who succeeds to the Presidency and serves in that office for more than four
years is ineligible for election as President. The Vice-President is elected primarily to succeed the President in the event of the
latter's death, permanent disability, removal, or resignation. While he may be appointed to the cabinet, his becoming, so is
entirely dependent on the good graces of the President. In running for Vice-President, he may thus be said to also seek the
Presidency. For their part, the electors likewise choose as Vice-President the candidate who they think can fill the Presidency in
the event it becomes vacant. Hence, service in the Presidency for more than four years may rightly be considered as service for
a full term.
This is not so in the case of the vice-mayor. Under the Local Government Code, he is the presiding officer of the sanggunian
and he appoints all officials and employees of such local assembly. He has distinct powers and functions, succession to
mayorship in the event of vacancy therein being only one of
them. 16 It cannot be said of him, as much as of the Vice-President in the event of a vacancy in the Presidency, that, in running
for vice-mayor, he also seeks the mayorship. His assumption of the mayorship in the event of vacancy is more a matter of
chance than of design. Hence, his service in that office should not be counted in the application of any term limit.
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to
serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms in an
elective local office, he must also have been elected to the same position for the same number of times before the
disqualification can apply. This point can be made clearer by considering the following cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six
months before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the
next election?
Yes, because although he has already first served as mayor by succession and subsequently resigned from
office before the full term expired, he has not actually served three full terms in all for the purpose of applying
the term limit. Under Art. X, §8, voluntary renunciation of the office is not considered as an interruption in the
continuity of his service for the full term only if the term is one "for which he was elected." Since A is only
completing the service of the term for which the deceased and not he was elected, A cannot be considered to
have completed one term. His resignation constitutes an interruption of the full term.
Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for misconduct for a
total of 1 year. If he is twice reelected after that, can he run for one more term in the next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the two conditions for the application of the disqualification
provisions have not concurred, namely, that the local official concerned has been elected three consecutive times and that he
has fully served three consecutive terms. In the first case, even if the local official is considered to have served three full terms
notwithstanding his resignation before the end of the first term, the fact remains that he has not been elected three times. In the
second case, the local official has been elected three consecutive times, but he has not fully served three consecutive terms.
Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total failure of the two
conditions to concur for the purpose of applying Art. X, §8. Suppose he is twice elected after that term, is he
qualified to run again in the next election?
Yes, because he was not elected to the office of mayor in the first term but simply found himself thrust into it by
operation of law. Neither had he served the full term because he only continued the service, interrupted by the
death, of the deceased mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to run a third time for reelection would
be not only to falsify reality but also to unduly restrict the right of the people to choose whom they wish to govern them. If the
vice-mayor turns out to be a bad mayor, the people can remedy the situation by simply not reelecting him for another term. But
if, on the other hand, he proves to be a good mayor, there will be no way the people can return him to office (even if it is just the
third time he is standing for reelection) if his service of the first term is counted as one for the purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while
the people should be protected from the evils that a monopoly of political power may bring about, care should be taken that their
freedom of choice is not unduly curtailed.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 78957 June 28, 1988
MARIO D. ORTIZ, petitioner,

vs.
COMMISSION ON ELECTIONS and COMMISSION ON AUDIT, respondents.
FERNAN, J.:
In this petition for certiorari, petitioner presents before the Court the issue of whether or not a constitutional official whose
"courtesy resignation" was accepted by the President of the Philippines during the effectivity of the Freedom Constitution may be
entitled to retirement benefits under Republic Act No. 1568, as amended.
Petitioner was appointed Commissioner of the Commission on Elections [COMELEC] by then President Ferdinand E. Marcos
"for a term expiring May 17, 1992." 1 He took his oath of office on July 30, 1985.
On March 5, 1986, together with Commissioners Quirino D. Marquinez and Mangontawar G. Guro, petitioner sent President
Corazon C. Aquino a letter which reads as follows:
The undersigned Commissioners were appointed to the Commission on Elections on July 30, 1985.
Following the example of Honorable Justices of the Supreme Court, on the premise that we have now a
revolutionary government, we hereby place our position at your disposal. 2
Thereafter, or on March 25,1986, the Freedom Constitution was promulgated through Proclamation No. 3, Artide III thereof
provides:
SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy,
efficiency, and the eradication of graft and corruption.
SEC. 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office
until otherwise provided by proclamation or executive order or upon the designation or appointment and
qualification of their successors, if such is made within a period of one year from February 25, 1986.
SEC. 3. Any public officer or employee separated from the service as a result of the reorganization effected
under this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits
accruing thereunder.
On April 16,1986, the COMELEC, then composed of Chairman Ramon H. Felipe, Jr. and Commissioners Froilan M. Bacungan,
Quirino A. Marquinez, Mario D. Ortiz (petitioner herein), Ruben E. Agpalo and Jaime J. Layosa, adopted Resolution No. 86-2364
approving the application for retirement of Commissioners Victorino Savellano and Jaime Opinion. Seven days later, the same
body passed Resolution No. 862370 approving the application for retirement of Commissioner Mangontawar B. Guro.
On July 21, 1986, the Deputy Executive Secretary requested Acting Chairman Felipe to convey the information to
Commissioners Marquinez, Ortiz, Agpalo and Layosa that the President had "accepted, with regrets, their
respective resignations, effective immediately." 3 After the presidential acceptance of said "resignations," the new COMELEC
was composed of Ramon H. Felipe, Jr. as Chairman and Commissioners Froilan M. Bacungan, Leopoldo L. Africa, Haydee B.
Yorac, Andres R. Flores, Dario C, Rama and Anacleto D. Badoy, Jr., as members. It was to this body that Commissioners
Agpalo, Ortiz and Marquinez submitted on July 30, 1986 their respective applications for retirement. They were followed by
Commissioner Layosa on August 1, 1986.
To justify their petitions for retirement and their requests for payment of retirement benefits, all seven former COMELEC
Commissioners invoked Republic Act No. l568 as amended by Republic Act No. 3595 and re-enacted by Republic Act No. 6118,
specifically the following provision:
SECTION 1. When the Auditor General or the Chairman or any Member of the Commission on Elections retires
from the service for having completed his term of office or by reason of his incapacity to discharge the duties of
his office, or dies while in the service, or resigns at any time after reaching the age of sixty years but before the
expiration of his term of office, he or his heirs shall be paid in lump sum his salary for one year, not exceeding
five years, for every year of service based upon the last annual salary that he was receiving at the time of
retirement incapacity, death or resignation, as the case may be: Provided, That in case of resignation, he has
rendered not less than twenty years of service in the government; And provided, further, That he shall receive
an annuity payable monthly during the residue of his natural life equivalent to the amount of monthly salary he
was receiving on the date of retirement, incapacity or resignation.
In its en banc Resolution No. 86-2491 * of August 13, 1986 4 the COMELEC revoked Resolutions Nos. 86-2364 dated April 16,
1986 and 86-2370 dated April 23, 1986, and denied the applications for retirement of Commissioners Marquinez, Agpalo, Ortiz
and Layosa on the ground that they were "not entitled to retirement benefits under Republic Act No. 1568, as amended" without
specifying the reason therefor. 5
Petitioner Ortiz moved for the reconsideration of said resolution, contending that he was entitled to the benefits under Republic
Act No. 1568, as amended. He averred therein that he did not resign but simply placed his position at the disposal of the
President; that he had in fact completed his term as Commissioner by the "change in the term of [his] office and eventual
replacement," and that he was entitled to retirement benefits under the aforementioned law because Article 1186 of the Civil
Code which states that "the condition [with regard to an obligation] shall be deemed fulfilled when the obligor voluntarily prevents
its fulfillment." He invoked the aforequoted provisions of Proclamation No. 3 and cited the cases of former Chief Justice Ramon
C. Aquino and Associate Justice Hermogenes Concepcion, Jr. who were allowed to retire by this Court and receive retirement
benefits. 6
Petitioner's letter/motion for reconsideration was denied by the COMELEC in its en banc resolution of October 1, 1986.** On
December 18, 1986, petitioner appealed the denial of his claim to the Chairman of the Commission on Audit [COA]. In its
memorandum dated January 15, 1987, the COA referred the matter to the COMELEC resident auditor for comment and
recommendation. Having failed to receive any communication from the COA for some six months, on June 3, 1987, petitioner
reiterated his appeal thereto. Again, the matter was referred to the COMELEC resident auditor with a request for immediate
action thereon.
A month later, or on July 9, 1987, petitioner filed the instant petition for certiorari alleging that the COMELEC's "arbitrary and
unjust denial" of his claim for retirement benefits and of his subsequent motion for reconsideration constitutes "grave and
whimsical abuse of discretion amounting to lack of jurisdiction" which can only be remedied through the instant petition in the
absence of an appeal or any plain, speedy and adequate remedy. 7 In his memorandum, however, petitioner admits that, as
correctly stated by the Solicitor General in respondents' comment on the petition, this petition is basically one for a writ of
mandamus aimed at compelling both the COMELEC and the COA to approve his claim for retirement benefits. 8
We consider this case as a special civil action of both certiorari and mandamus and, notwithstanding the Solicitor General's
contention that action herein is premature as the COA may yet render a decision favorable to the petitioner, We opt to decide
this case to shed light on the legal issue presented.
The respondents posit the view that petitioner's "voluntary resignation" prevented the completion of his term of office, and,
therefore, having rendered only sixteen years of service to the government, he is not entitled to retirement benefits. 9
We disagree. Petitioner's separation from government service as a result of the reorganization ordained by the then nascent
Aquino government may not be considered a resignation within the contemplation of the law. Resignation is defined as the act of
giving up or the act of an officer by which he declines his office and renounces the further right to use it. 10 To constitute a
complete and operative act of resignation, the officer or employee must show a clear intention to relinquish or surrender his
position accompanied by the act of relinquishment. 11 Resignation implies an expression of the incumbent in some form, express
or implied, of the intention to surrender, renounce and relinquish the office, and its acceptance by competent and lawful
authority. 12
From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention to surrender his position. We
cannot presume such intention from his statement in his letter of March 5, 1986 that he was placing his position at the disposal
of the President. He did not categorically state therein that he was unconditionally giving up his position. It should be
remembered that said letter was actually a response to Proclamation No. 1 which President Aquino issued on February 25,1986
when she called on all appointive public officials to tender their "courtesy resignation" as a "first step to restore confidence in
public administration.
Verily, a "courtesy resignation" can lot properly be interpreted as resignation in the legal sense for it is not necessarily a
reflection of a public official's intention to surrender his position. Rather, it manifests his submission to the will of the political
authority and the appointing power.
A stringent interpretation of courtesy resignations must therefore be observed, particularly in cases involving constitutional
officials like the petitioner whose removal from office entails an impeachment proceeding. 13 For even if working for the
government is regarded as no more than a privilege, discharge for disloyalty or for doubt about loyalty may involve such legal
rights as those in reputation and eligibility for other employment. 14
The curtailment of his term not being attributable to any voluntary act on the part of the petitioner, equity and justice demand that
he should be deemed to have completed his term albeit much ahead of the date stated in his appointment paper. Petitioner's
case should be placed in the same category as that of an official holding a primarily confidential position whose tenure ends
upon his superior's loss of confidence in him. His cessation from the service entails no removal but an expiration of his term. 15
As he is deemed to have completed his term of office, petitioner should be considered retired from the service. And, in the
absence of proof that he has been found guilty of malfeasance or misfeasance in office or that there is a pending administrative
case against him, petitioner is entitled to a life pension under Republic Act No. 1568 as amended and reenacted by Republic Act
No. 6118. He is, therefore, protected by the mantle of the Freedom Constitution specifically Article III, Section 3 thereof which
was in effect when he was replaced by the appointment and qualification of a new Commissioner.
Parenthetically, to a public servant, pension is not a gratuity but rather a form of deferred compensation for services performed
and his right thereto commences to vest upon his entry into the retirement system and becomes an enforceable obligation in
court upon fulfillment of all conditions under which it is to be paid. 16 Similarly, retirement benefits receivable by public employees
are valuable parts of the consideration for entrance into and continuation in public employment. 17 They serve a public purpose
and a primary objective in establishing them is to induce able persons to enter and remain in public employment, and to render
faithful and efficient service while so employed. 18
Worth noting is the fact that, as originally enacted, Republic Act No. 1568 required not less than twenty years of service in the
government at the time of the retirement, death or resignation of the Auditor General or the Chairman and any Member of the
COMELEC. The same length of service was required after Republic Act No. 3473 amended the law. However, Republic Act No.
3595 further amended Republic Act No. 1568 and the 20-year service requirement was mandated only in case of resignation of
the public official covered by the law. Although Republic Act No. 1568, as amended, was inoperative and abolished in Section 9
of Republic Act No. 4968, it was re-enacted under Republic Act No. 6118.
On the respondents' assertion that the retirement law is clear and hence, there is no room for its interpretation, We reiterate the
basic principle that, being remedial in character, a statute creating pensions should be liberally construed and administered in
favor of the persons intended to be benefited thereby. 19 This is as it should be because the liberal approach aims to achieve the
humanitarian purposes of the law in order that the efficiency, security, and well-being of government employees may be
enhanced. 20
WHEREFORE, respondent Commission on Elections denial of petitioner's application for retirement benefits is hereby reversed
and set aside. The Commission on Audit and other public offices concerned are directed to facilitate the processing and
payment of petitioner's retirement benefits.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 81954 August 8, 1989
CESAR Z. DARIO, petitioner,

vs.
HON. SALVADOR M. MISON, HON. VICENTE JAYME and HON. CATALINO MACARAIG, JR., in their respective
capacities as Commissioner of Customs, Secretary of Finance, and Executive Secretary, respondents.
G.R. No. 81967 August 8, 1989
VICENTE A. FERIA JR., petitioner,

vs.
HON. SALVADOR M. MISON, HON. VICENTE JAYME, and HON. CATALINO MACARAIG, JR., in their respective
capacities as Commissioner of Customs, Secretary of Finance, and Executive Secretary, respondents.
G.R. No. 82023 August 8, 1989
ADOLFO CASARENO, PACIFICO LAGLEVA, JULIAN C. ESPIRITU, DENNIS A. AZARRAGA, RENATO DE JESUS,
NICASIO C. GAMBOA, CORAZON RALLOS NIEVES, FELICITACION R. GELUZ, LEODEGARIO H. FLORESCA, SUBAER
PACASUM, ZENAIDA LANARIA, JOSE B. ORTIZ, GLICERIO R. DOLAR, CORNELIO NAPA, PABLO B. SANTOS, FERMIN
RODRIGUEZ, DALISAY BAUTISTA, LEONARDO JOSE, ALBERTO LONTOK, PORFIRIO TABINO, JOSE BARREDO,
ROBERTO ARNALDO, ESTER TAN, PEDRO BAKAL, ROSARIO DAVID, RODOLFO AFUANG, LORENZO CATRE,
LEONCIA CATRE, ROBERTO ABADA, petitioners,
vs.
COMMISSIONER SALVADOR M. MISON, COMMISSIONER, BUREAU OF CUSTOMS, respondent.
G.R. No. 83737 August 8, 1989
BENEDICTO L. AMASA and WILLIAM S. DIONISIO, petitioners,

vs.
PATRICIA A. STO. TOMAS, in her capacity as Chairman of the Civil Service Commission and SALVADOR MISON, in his
capacity as Commissioner of the Bureau of Customs, respondents.
G.R. No. 85310 August 8, 1989
SALVADOR M. MISON, in his capacity as Commissioner of Customs, petitioner,

vs.
CIVIL SERVICE COMMISSION, ABACA, SISINIO T., ABAD, ROGELIO C., ABADIANO, JOSE P., ABCEDE, NEMECIO C.,
ABIOG, ELY F., ABLAZA, AURORA M., AGBAYANI, NELSON I., AGRES ANICETO, AGUILAR, FLOR, AGUILUCHO MA.
TERESA R., AGUSTIN, BONIFACIO T., ALANO, ALEX P., ALBA, MAXIMO F. JR., ALBANO, ROBERT B., ALCANTARA,
JOSE G., ALMARIO, RODOLFO F., ALVEZ, ROMUALDO R., AMISTAD RUDY M., AMOS, FRANCIS F., ANDRES,
RODRIGO V., ANGELES, RICARDO S., ANOLIN, MILAGROS H., AQUINO, PASCASIO E., ARABE, MELINDA M.,
ARCANGEL, AGUSTIN S., JR., ARPON, ULPLIANO U., JR., ARREZA, ARTEMIO M., JR., ARROJO, ANTONIO P., ARVISU,
ALEXANDER S., ASCAÑ;O, ANTONIO T., ASLAHON, JULAHON P., ASUNCION, VICTOR R., ATANGAN, LORNA S.,
ATIENZA, ALEXANDER R., BACAL, URSULINO C., BAÑ;AGA, MARLOWE, Z., BANTA, ALBERTO T., BARREDO, JOSE
B., BARROS, VICTOR C., BARTOLOME, FELIPE A., BAYSAC, REYNALDO S., BELENO, ANTONIO B., BERNARDO,
ROMEO D., BERNAS, MARCIANO S., BOHOL, AUXILIADOR G., BRAVO, VICTOR M., BULEG, BALILIS R., CALNEA,
MERCEDES M., CALVO, HONESTO G., CAMACHO, CARLOS V., CAMPOS, RODOLFO C., CAPULONG, RODRIGO G.,
CARINGAL, GRACIA Z., CARLOS, LORENZO B., CARRANTO, FIDEL U., CARUNGCONG, ALFREDO M., CASTRO,
PATRICIA J., CATELO, ROGELIO B., CATURLA, MANUEL B., CENIZAL, JOSEFINA F., CINCO, LUISITO, CONDE0, JOSE
C., JR., CORCUERA, FIDEL S., CORNETA, VICENTE S., CORONADO, RICARDO S., CRUZ, EDUARDO S., CRUZ,
EDILBERTO A., CRUZ, EFIGENIA B., CRUZADO, MARCIAL C., CUSTODIO, RODOLFO M., DABON, NORMA M.,
DALINDIN, EDNA MAE D., DANDAL, EDEN F., DATUHARON, SATA A., DAZO, GODOFREDO L., DE CASTRO, LEOPAPA,
DE GUZMAN, ANTONIO A., DE GUZMAN, RENATO E., DE LA CRUZ, AMADO A., JR., DE LA CRUZ, FRANCISCO C., DE
LA PEÑ;A, LEONARDO, DEL CAMPO, ORLANDO, DEL RIO, MAMERTO P., JR., DEMESA, WILHELMINA T., DIMAKUTA,
SALIC L., DIZON, FELICITAS A., DOCTOR, HEIDY M., DOLAR, GLICERIO R., DOMINGO, NICANOR J., DOMINGO,
PERFECTO V., JR., DUAY, JUANA G., DYSANGCO, RENATO F., EDILLOR, ALFREDO P., ELEVAZO, LEONARDO A.,
ESCUYOS, MANUEL M., JR., ESMERIA, ANTONIO E., ESPALDON, MA. LOURDES H., ESPINA, FRANCO A., ESTURCO,
RODOLFO C., EVANGELINO, FERMIN I., FELIX, ERNESTO G., FERNANDEZ, ANDREW M., FERRAREN, ANTONIO C.,
FERRERA, WENCESLAO A., FRANCISCO, PELAGIO S., JR., FUENTES, RUDY L., GAGALANG, RENATO V., GALANG,
EDGARDO R., GAMBOA, ANTONIO C., GAN, ALBERTO R., GARCIA, GILBERT M., GARCIA, EDNA V., GARCIA, JUAN L.,
GAVIOLA, LILIAN V., GEMPARO, SEGUNDINA G., GOBENCIONG, FLORDELIZ B., GRATE, FREDERICK R., GREGORIO,
LAURO P., GUARTICO, AMMON H., GUIANG, MYRNA N., GUINTO, DELFIN C., HERNANDEZ, LUCAS A., HONRALES,
LORETO N., HUERTO, LEOPOLDO H., HULAR , LANNYROSS E., IBAÑ;EZ, ESTER C., ILAGAN, HONORATO C.,
INFANTE, REYNALDO C., ISAIS, RAY C., ISMAEL, HADJI AKRAM B., JANOLO, VIRGILIO M., JAVIER, AMADOR L.,
JAVIER, ROBERTO S., JAVIER, WILLIAM R., JOVEN, MEMIA A., JULIAN, REYNALDO V., JUMAMOY, ABUNDIO A.,
JUMAQUIAO, DOMINGO F., KAINDOY, PASCUAL B., JR., KOH, NANIE G., LABILLES, ERNESTO S., LABRADOR,
WILFREDO M., LAGA, BIENVENIDO M., LAGLEVA, PACIFICO Z., LAGMAN, EVANGELINE G., LAMPONG, WILFREDO G.,
LANDICHO, RESTITUTO A., LAPITAN, CAMILO M., LAURENTE, REYNALDO A., LICARTE, EVARISTO R., LIPIO, VICTOR
O., LITTAUA, FRANKLIN Z., LOPEZ, MELENCIO L., LUMBA, OLIVIA., MACAISA, BENITO T., MACAISA, ERLINDA C.,
MAGAT, ELPIDIO, MAGLAYA, FERNANDO P., MALABANAN, ALFREDO C., MALIBIRAN, ROSITA D., MALIJAN, LAZARO
V., MALLI, JAVIER M., MANAHAN, RAMON S., MANUEL, ELPIDIO R., MARAVILLA, GIL B., MARCELO, GIL C.,
MARIÑ;AS, RODOLFO V., MAROKET, JESUS C., MARTIN, NEMENCIO A., MARTINEZ, ROMEO M., MARTINEZ,
ROSELINA M., MATIBAG, ANGELINA G., MATUGAS, ERNESTO T., MATUGAS, FRANCISCO T., MAYUGA, PORTIA E.,
MEDINA, NESTOR M., MEDINA, ROLANDO S., MENDAVIA, AVELINO I., MENDOZA, POTENCIANO G., MIL, RAY M.,
MIRAVALLES, ANASTACIA L., MONFORTE, EUGENIO, JR., G., MONTANO, ERNESTO F., MONTERO, JUAN M. III.,
MORALDE, ESMERALDO B., JR., MORALES, CONCHITA D.L., MORALES, NESTOR P., MORALES, SHIRLEY S., MUNAR,
JUANITA L., MUÑ;OZ, VICENTE R., MURILLO, MANUEL M., NACION, PEDRO R., NAGAL, HENRY N., NAPA, CORNELIO
B., NAVARRO, HENRY L., NEJAL, FREDRICK E., NICOLAS, REYNALDO S., NIEVES, RUFINO A., OLAIVAR, SEBASTIAN
T., OLEGARIO, LEO Q., ORTEGA, ARLENE R., ORTEGA, JESUS R., OSORIO, ABNER S., PAPIO, FLORENTINO T. II,
PASCUA, ARNULFO A., PASTOR, ROSARIO, PELAYO, ROSARIO L., PEÑ;A, AIDA C., PEREZ, ESPERIDION B., PEREZ,
JESUS BAYANI M., PRE, ISIDRO A., PRUDENCIADO, EULOGIA S., PUNZALAN, LAMBERTO N., PURA, ARNOLD T.,
QUINONES, EDGARDO I., QUINTOS, AMADEO C., JR., QUIRAY, NICOLAS C., RAMIREZ, ROBERTO P., RAÑ;ADA,
RODRIGO C., RARAS, ANTONIO A., RAVAL, VIOLETA V., RAZAL, BETTY R., REGALA, PONCE F., REYES, LIBERATO
R., REYES, MANUEL E., REYES, NORMA Z., REYES, TELESFORO F., RIVERA, ROSITA L., ROCES, ROBERTO V.,
ROQUE, TERESITA S., ROSANES, MARILOU M., ROSETE, ADAN I., RUANTO, REY, CRISTO C., JR., SABLADA,
PASCASIO G., SALAZAR, SILVERIA S., SALAZAR, VICTORIA A., SALIMBACOD, PERLITA C., SALMINGO, LOURDES M.,
SANTIAGO, EMELITA B., SATINA, PORFIRIO C., SEKITO, COSME B., JR., SIMON, RAMON P., SINGSON, MELECIO C.,
SORIANO, ANGELO L., SORIANO, MAGDALENA R., SUMULONG, ISIDRO L., JR., SUNICO, ABELARDO T., TABIJE,
EMMA B., TAN, RUDY, GOROSPE, TAN, ESTER S., TAN, JULITA S., TECSON, BEATRIZ B., TOLENTINO, BENIGNO A.,
TURINGAN, ENRICO T., JR., UMPA, ALI A., VALIC, LUCIO E., VASQUEZ, NICANOR B., VELARDE, EDGARDO C., VERA,
AVELINO A., VERAME, OSCAR E., VIADO, LILIAN T., VIERNES, NAPOLEON K., VILLALON, DENNIS A., VILLAR, LUZ L.,
VILLALUZ, EMELITO V., ZATA, ANGEL A., JR., ACHARON, CRISTETO, ALBA, RENATO B., AMON, JULITA C., AUSTRIA,
ERNESTO C., CALO, RAYMUNDO M., CENTENO, BENJAMIN R., DE CASTRO, LEOPAPA C ., DONATO, ESTELITA P.,
DONATO, FELIPE S., FLORES, PEDRITO S., GALAROSA, RENATO, MALAWI, MAUYAG, MONTENEGRO, FRANCISCO
M., OMEGA, PETRONILO T., SANTOS, GUILLERMO F., TEMPLO, CELSO, VALDERAMA, JAIME B., and VALDEZ, NORA
M., respondents.
G.R. No. 85335 August 8, 1989
FRANKLIN Z. LITTAUA, ADAN I. ROSETE, FRANCISCO T. MATUGAS, MA. J. ANGELINA G. MATIBAG, LEODEGARDIO
H. FLORESCA, LEONARDO A. DELA PEÑ;A, ABELARDO T. SUNICO, MELENCIO L. LOPEZ, NEMENCIO A. MARTIN,
RUDY M. AMISTAD, ERNESTO T. MATUGAS, SILVERIA S. SALAZAR, LILLIAN V. GAVIOLA, MILAGROS ANOLIN, JOSE
B. ORTIZ, ARTEMIO ARREZA, JR., GILVERTO M. GARCIA, ANTONIO A. RARAS, FLORDELINA B. GOBENCIONG,
ANICETO AGRES, EDGAR Y. QUINONES, MANUEL B. CATURLA, ELY F. ABIOG, RODRIGO C. RANADA, LAURO
GREGORIO, ALBERTO I. GAN, EDGARDO GALANG, RAY C. ISAIS, NICANOR B. VASQUEZ, MANUEL ESCUYOS, JR.,
ANTONIO B. BELENO, ELPIO R. MANUEL, AUXILIADOR C. BOHOL, LEONARDO ELEVAZO, VICENTE S.
CORNETA, petitioners,
vs.
COM. SALVADOR M. MISON/BUREAU OF CUSTOMS and the CIVIL SERVICE COMMISSION, respondents.
G.R. No. 86241 August 8, 1989
SALVADOR M. MISON, in his capacity as Commissioner of Customs, petitioner,

vs.
CIVIL SERVICE COMMISSION, SENEN S. DIMAGUILA, ROMEO P. ARABE BERNARDO S. QUINTONG, GREGORIO P.
REYES, and ROMULO C. BADILLO respondents
SARMIENTO, J.:
The Court writes finis to this contreversy that has raged bitterly for the several months. It does so out of ligitimate presentement
of more suits reaching it as a consequence of the government reorganization and the instability it has wrought on the
performance and efficiency of the bureaucracy. The Court is apprehensive that unless the final word is given and the ground
rules are settled, the issue will fester, and likely foment on the constitutional crisis for the nation, itself biset with grave and
serious problems.
The facts are not in dispute.
On March 25, 1986, President Corazon Aquino promulgated Proclamation No. 3, "DECLARING A NATIONAL POLICY TO
IMPLEMENT THE REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC RIGHTS, ADOPTING A
PROVISIONAL CONSTITUTION, AND PROVIDING FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW
CONSTITUTION." Among other things, Proclamation No. 3 provided:
SECTION 1. ...
The President shall give priority to measures to achieve the mandate of the people to:
(a) Completely reorganize the government, eradicate unjust and oppressive structures, and all iniquitous
vestiges of the previous regime; 1
...
Pursuant thereto, it was also provided:
SECTION 1. In the reorganization of the government, priority shall be given to measures to promote economy,
efficiency, and the eradication of graft and corruption.
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if
such is made within a period of one year from February 25, 1986.
SECTION 3. Any public officer or employee separated from the service as a result of the organization effected under
this Proclamation shall, if entitled under the laws then in force, receive the retirement and other benefits accruing
thereunder.
SECTION 4. The records, equipment, buildings, facilities and other properties of all government offices shall be
carefully preserved. In case any office or body is abolished or reorganized pursuant to this Proclamation, its FUNDS
and properties shall be transferred to the office or body to which its powers, functions and responsibilities substantially
pertain. 2
Actually, the reorganization process started as early as February 25, 1986, when the President, in her first act in office, called
upon "all appointive public officials to submit their courtesy resignation(s) beginning with the members of the Supreme
Court."3 Later on, she abolished the Batasang Pambansa4 and the positions of Prime Minister and Cabinet 5 under the 1973
Constitution.
Since then, the President has issued a number of executive orders and directives reorganizing various other government offices,
a number of which, with respect to elected local officials, has been challenged in this Court, 6 and two of which, with respect to
appointed functionaries, have likewise been questioned herein. 7
On May 28, 1986, the President enacted Executive Order No. 17, "PRESCRIBING RULES AND REGULATIONS FOR THE
IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM CONSTITUTION." Executive Order No. 17 recognized
the "unnecessary anxiety and demoralization among the deserving officials and employees" the ongoing government
reorganization had generated, and prescribed as "grounds for the separation/replacement of personnel," the following:
SECTION 3. The following shall be the grounds for separation replacement of personnel:
1) Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;
2) Existence of a probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by the
Mnistry Head concerned;
3) Gross incompetence or inefficiency in the discharge of functions;
4) Misuse of public office for partisan political purposes;
5) Any other analogous ground showing that the incumbent is unfit to remain in the service or his
separation/replacement is in the interest of the service.8
On January 30, 1987, the President promulgated Executive Order No. 127, "REORGANIZING THE MINISTRY OF
FINANCE." 9 Among other offices, Executive Order No. 127 provided for the reorganization of the Bureau of Customs 10
and
prescribed a new staffing pattern therefor.
Three days later, on February 2, 1987, 11 the Filipino people adopted the new Constitution.
On January 6, 1988, incumbent Commissioner of Customs Salvador Mison issued a Memorandum, in the nature of "Guidelines
on the Implementation of Reorganization Executive Orders," 12 prescribing the procedure in personnel placement. It also
provided:
1. By February 28, 1988, the employees covered by Executive Order 127 and the grace period extended to the
Bureau of Customs by the President of the Philippines on reorganization shall be:
a) informed of their re-appointment, or
b) offered another position in the same department or agency or
c) informed of their termination. 13
On the same date, Commissioner Mison constituted a Reorganization Appeals Board charged with adjudicating appeals from
removals under the above Memorandum. 14 On January 26, 1988, Commissioner Mison addressed several notices to various
Customs officials, in the tenor as follows:
Sir:
Please be informed that the Bureau is now in the process of implementing the Reorganization Program under Executive
Order No. 127.
Pursuant to Section 59 of the same Executive Order, all officers and employees of the Department of Finance, or the
Bureau of Customs in particular, shall continue to perform their respective duties and responsibilities in a hold-over
capacity, and that those incumbents whose positions are not carried in the new reorganization pattern, or who are not
reappointed, shall be deemed separated from the service.
In this connection, we regret to inform you that your services are hereby terminated as of February 28, 1988. Subject to
the normal clearances, you may receive the retirement benefits to which you may be entitled under existing laws, rules
and regulations.
In the meantime, your name will be included in the consolidated list compiled by the Civil Service Commission so that
you may be given priority for future employment with the Government as the need arises.
Sincerely yours,
(Sgd) SALVADOR M. MISON
Commissioner15
As far as the records will yield, the following were recipients of these notices:
1. CESAR DARIO
2. VICENTE FERIA, JR.
3. ADOLFO CASARENO
4. PACIFICO LAGLEVA
5. JULIAN C. ESPIRITU
6. DENNIS A. AZARRAGA
7. RENATO DE JESUS
8. NICASIO C. GAMBOA
9. CORAZON RALLOS NIEVES
10. FELICITACION R. GELUZ
11. LEODEGARIO H. FLORESCA
12. SUBAER PACASUM
13. ZENAIDA LANARIA
14. JOSE B. ORTIZ
15. GLICERIO R. DOLAR
16. CORNELIO NAPA
17. PABLO B. SANTOS
18. FERMIN RODRIGUEZ
19. DALISAY BAUTISTA
20. LEONARDO JOSE
21. ALBERTO LONTOK
22. PORFIRIO TABINO
23. JOSE BARREDO

24. ROBERTO ARNALDO
25. ESTER TAN
26. PEDRO BAKAL
27. ROSARIO DAVID
28. RODOLFO AFUANG
29. LORENZO CATRE
30. LEONCIA CATRE
31. ROBERTO ABADA
32. ABACA, SISINIO T.
33. ABAD, ROGELIO C.
34. ABADIANO, JOSE P
35. ABCEDE, NEMECIO C.
36. ABIOG, ELY F.
37. ABLAZA, AURORA M.
38. AGBAYANI, NELSON I.
39. AGRES, ANICETO
40. AGUILAR, FLOR
41. AGUILUCHO, MA. TERESA R.
42. AGUSTIN, BONIFACIO T.
43. ALANO, ALEX P.
44. ALBA, MAXIMO F. JR.
45. ALBANO, ROBERT B.
46. ALCANTARA, JOSE G.
47. ALMARIO, RODOLFO F.
48. ALVEZ, ROMUALDO R.
49. AMISTAD, RUDY M.
50. AMOS, FRANCIS F.
51. ANDRES, RODRIGO V.
52. ANGELES, RICARDO S.
53. ANOLIN, MILAGROS H.
54. AQUINO, PASCASIO E. L.
55. ARABE, MELINDA M.
56. ARCANGEL, AGUSTIN S, JR.
57. ARPON, ULPIANO U., JR.

58. ARREZA, ARTEMIO M, JR.
59. ARROJO, ANTONIO P.
60. ARVISU, ALEXANDER S.
61. ASCAÑ;O, ANTONIO T.
62. ASLAHON, JULAHON P.
63. ASUNCION, VICTOR R.
64. ATANGAN, LORNA S.
65. ANTIENZA, ALEXANDER R.
66. BACAL URSULINO C.
67. BAÑ;AGA, MARLOWE Z.
68. BANTA, ALBERTO T.
69. BARROS, VICTOR C.
70. BARTOLOME, FELIPE A.
71. BAYSAC, REYNALDO S.
72. BELENO, ANTONIO B.
73. BERNARDO, ROMEO D.
74. BERNAS, MARCIANO S.
75. BOHOL, AUXILIADOR G.
76. BRAVO, VICTOR M.
77. BULEG, BALILIS R.
78. CALNEA, MERCEDES M.
79. CALVO, HONESTO G.
80. CAMACHO, CARLOS V.
81. CAMPOS, RODOLFO C.
82. CAPULONG, RODRIGO G.
83. CARINGAL, GRACIA Z.
84. CARLOS, LORENZO B.
85. CARRANTO, FIDEL U.
86. CARUNGCONG, ALFREDO M.
87. CASTRO, PATRICIA J.
88. CATELO, ROGELIO B.
89. CATURLA, MANUEL B.
90. CENIZAL, JOSEFINA F.
91. CINCO, LUISITO

92. CONDE, JOSE C., JR.
93. CORCUERA, FIDEL S.
94. CORNETA, VICENTE S.
95. CORONADO, RICARDO S.
96. CRUZ, EDUARDO S.
97. CRUZ, EDILBERTO A,
98. CRUZ, EFIGENIA B.
99. CRUZADO,NORMA M.
100. CUSTODIO, RODOLFO M.
101. DABON, NORMA M.
102. DALINDIN, EDNA MAE D.
103. DANDAL, EDEN F.
104. DATUHARON, SATA A.
105. DAZO, GODOFREDO L.
106. DE CASTRO, LEOPAPA
107. DE GUZMAN, ANTONIO A.
108. DE GUZMAN, RENATO E.
109. DE LA CRUZ, AMADO A., JR.
110. DE LA CRUZ, FRANCISCO C.
111. DE LA PEÑ;A, LEONARDO
112. DEL CAMPO, ORLANDO
113. DEL RIO, MAMERTO P., JR.
114. DEMESA, WILHELMINA T.
115. DIMAKUTA, SALIC L.
116. DIZON, FELICITAS A.
117. DOCTOR, HEIDY M.
118. DOMINGO, NICANOR J.
119. DOMINGO, PERFECTO V., JR.
120. DUAY, JUANA G.
121. DYSANGCO, RENATO F.
122. EDILLOR, ALFREDO P.
123. ELEVAZO, LEONARDO A
124. ESCUYOS, MANUEL M., JR.
125. ESMERIA, ANTONIO E.

126. ESPALDON, MA. LOURDES H.
127. ESPINA, FRANCO A.
128. ESTURCO, RODOLFO C.
129. EVANGELINO, FERMIN I.
130. FELIX, ERNESTO G.
131. FERNANDEZ, ANDREW M.
132. FERRAREN, ANTONIO C.
133. FERRERA, WENCESLAO A.
134. FRANCISCO, PELAGIO S, JR.
135. FUENTES, RUDY L.
136. GAGALANG, RENATO V.
137. GALANG, EDGARDO R.
138. GAMBOA, ANTONIO C.
139. GAN, ALBERTO P
140. GARCIA, GILBERT M.
141. GARCIA, EDNA V.
142. GARCIA, JUAN L.
143. GAVIOIA, LILIAN V.
144. GEMPARO, SEGUNDINA G.
145. GOBENCIONG, FLORDELIZ B.
146. GRATE, FREDERICK R.
147. GREGORIO, LAURO P.
148. GUARTICO, AMMON H.
149. GUIANG, MYRNA N.
150. GUINTO, DELFIN C.
151. HERNANDEZ, LUCAS A.
152. HONRALES, LORETO N.
153. HUERTO, LEOPOLDO H.
154. HULAR, LANNYROSS E.
155. IBAÑ;EZ, ESTER C.
156. ILAGAN, HONORATO C.
157. INFANTE, REYNALDO C.
158. ISAIS, RAY C.
159. ISMAEL, HADJI AKRAM B.

160. JANOLO, VIRGILIO M.
161. JAVIER, AMADOR L.
162. JAVIER, ROBERTO S.
163. JAVIER, WILLIAM R.
164. JOVEN, MEMIA A.
165. JULIAN, REYNALDO V.
166. JUMAMOY, ABUNDIO A.
167. JUMAQUIAO, DOMINGO F.
168. KAINDOY, PASCUAL B., JR.
169. KOH, NANIE G.
170. LABILLES, ERNESTO S.
171. LABRADOR, WILFREDO M.
172. LAGA, BIENVENIDO M.
173. LAGMAN, EVANGELINE G.
174. LAMPONG, WILFREDO G.
175. LANDICHO, RESTITUTO A.
176. LAPITAN, CAMILO M.
177. LAURENTE, REYNALDO A.
178. LICARTE, EVARISTO R.
179. LIPIO, VICTOR O.
180. LITTAUA, FRANKLIN Z.
181. LOPEZ, MELENCIO L.
182. LUMBA, OLIVIA R.
183. MACAISA, BENITO T.
184. MACAISA, ERLINDA C.
185. MAGAT, ELPIDIO
186. MAGLAYA, FERNANDO P.
187. MALABANAN, ALFREDO C.
188. MALIBIRAN, ROSITA D.
189. MALIJAN, LAZARO V.
190. MALLI, JAVIER M.
191. MANAHAN, RAMON S.
192. MANUEL, ELPIDIO R.
193. MARAVILLA, GIL B.

194. MARCELO, GIL C.
195. MARIÑ;AS, RODOLFO V.
196. MAROKET ,JESUS C.
197. MARTIN, NEMENCIO A.
198. MARTINEZ, ROMEO M.
199. MARTINEZ, ROSELINA M.
200. MATIBAG, ANGELINA G.
201. MATUGAS, ERNESTO T.
202. MATUGAS, FRANCISCO T.
203. MAYUGA, PORTIA E.
204. MEDINA, NESTOR M.
205. MEDINA, ROLANDO S.
206. MENDAVIA, AVELINO
207. MENDOZA, POTENCIANO G.
208. MIL, RAY M.
209. MIRAVALLES, ANASTACIA L.
210. MONFORTE, EUGENIO, JR. G.
211. MONTANO, ERNESTO F.
212. MONTERO, JUAN M. III
213. MORALDE, ESMERALDO B., JR.
214. MORALES, CONCHITA D. L
215. MORALES, NESTOR P.
216. MORALES, SHIRLEY S.
217. MUNAR, JUANITA L.
218. MUÑ;OZ, VICENTE R.
219. MURILLO, MANUEL M.
220. NACION, PEDRO R.
221. NAGAL, HENRY N.
222. NAVARRO, HENRY L.
223. NEJAL FREDRICK E.
224. NICOLAS, REYNALDO S.
225. NIEVES, RUFINO A.
226. OLAIVAR, SEBASTIAN T.
227. OLEGARIO, LEO Q.

228. ORTEGA, ARLENE R.
229. ORTEGA, JESUS R.
230. OSORIO, ABNER S.
231. PAPIO FLORENTINO T. II
232. PASCUA, ARNULFO A.
233. PASTOR, ROSARIO
234. PELAYO, ROSARIO L.
235. PEÑ;A, AIDA C.
236. PEREZ, ESPERIDION B.
237. PEREZ, JESUS BAYANI M.
238. PRE, ISIDRO A.
239. PRUDENCIADO, EULOGIA S.
240. PUNZALAN, LAMBERTO N.
241. PURA, ARNOLD T.
242. QUINONES, EDGARDO I.
243. QUINTOS, AMADEO C., JR.
244. QUIRAY, NICOLAS C.
245. RAMIREZ, ROBERTO P.
246. RANADA, RODRIGO C.
247. RARAS, ANTONIO A.
248. RAVAL, VIOLETA V.
249. RAZAL, BETTY R.
250. REGALA, PONCE F.
251. REYES, LIBERATO R.
252. REYES, MANUEL E.
253. REYES, NORMA Z.
254. REYES, TELESPORO F.
255. RIVERA, ROSITA L.
256. ROCES, ROBERTO V.
257. ROQUE, TERESITA S.
258. ROSANES, MARILOU M.
259. ROSETE, ADAN I.
260. RUANTO, REY CRISTO C., JR.
261. SABLADA, PASCASIO G.

262. SALAZAR, SILVERIA S.
263. SALAZAR, VICTORIA A.
264. SALIMBACOD, PERLITA C.
265. SALMINGO, LOURDES M.
266. SANTIAGO, EMELITA B.
267. SATINA, PORFIRIO C.
268. SEKITO, COSME B JR.
269. SIMON, RAMON P.
270. SINGSON, MELENCIO C.
271. SORIANO, ANGELO L.
272. SORIANO, MAGDALENA R.
273. SUNICO, ABELARDO T .
274. TABIJE, EMMA B.
275. TAN, RUDY GOROSPE
276. TAN, ESTER S.
277. TAN, JULITA S.
278. TECSON, BEATRIZ B.
279. TOLENTINO, BENIGNO A.
280. TURINGAN, ENRICO T JR.
281. UMPA, ALI A.
282. VALIC, LUCIO E.
283. VASQUEZ, NICANOR B.
284. VELARDE, EDGARDO C.
285. VERA, AVELINO A.
286. VERAME, OSCAR E.
287. VIADO, LILIAN T.
288. VIERNES, NAPOLEON K
289. VILLALON, DENNIS A.
290. VILLAR, LUZ L.
291. VILLALUZ, EMELITO V.
292. VILLAR, LUZ L.
293. ZATA, ANGELA JR.
294. ACHARON, CRISTETO
295. ALBA, RENATO B.

296. AMON, JULITA C.
297. AUSTRIA, ERNESTO C.
298. CALO, RAYMUNDO M.
299. CENTENO, BENJAMIN R.
300. DONATO, ESTELITA P.
301. DONATO, FELIPE S
302. FLORES, PEDRITO S.
303. GALAROSA, RENATO
304. MALAWI, MAUYAG
305. MONTENEGRO, FRANSISCO M.
306. OMEGA, PETRONILO T.
307. SANTOS, GUILLERMO P.
308. TEMPLO, CELSO
309. VALDERAMA, JAIME B.
310. VALDEZ, NORA M.

Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the petitioner in G.R. No. 81967; Messrs. Adolfo Caserano
Pacifico Lagleva Julian C. Espiritu, Dennis A. Azarraga Renato de Jesus, Nicasio C. Gamboa, Mesdames Corazon Rallos
Nieves and Felicitacion R. Geluz Messrs. Leodegario H. Floresca, Subaer Pacasum Ms. Zenaida Lanaria Mr. Jose B. Ortiz, Ms.
Gliceria R. Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin Rodriguez, Ms. Daligay Bautista, Messrs. Leonardo Jose, Alberto
Lontok, Porfirio Tabino Jose Barredo, Roberto Arnaldo, Ms. Ester Tan, Messrs. Pedro Bakal, Rosario David, Rodolfo Afuang,
Lorenzo Catre,, Ms. Leoncia Catre, and Roberto Abaca, are the petitioners in G.R. No. 82023; the last 279 16 individuals
mentioned are the private respondents in G.R. No. 85310.
As far as the records will likewise reveal, 17 a total of 394 officials and employees of the Bureau of Customs were given individual
notices of separation. A number supposedly sought reinstatement with the Reorganization Appeals Board while others went to
the Civil Service Commission. The first thirty-one mentioned above came directly to this Court.
On June 30, 1988, the Civil Service Commission promulgated its ruling ordering the reinstatement of the 279 employees, the
279 private respondents in G.R. No. 85310, the dispositive portion of which reads as follows:
WHEREFORE, it is hereby ordered that:
1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the Bureau of

Customs without loss of seniority rights;
2. Appellants be paid their back salaries reckoned from the dates of their illegal termination based on the rates
under the approved new staffing pattern but not lower than their former salaries.
This action of the Commission should not, however, be interpreted as an exoneration of the appellants from any
accusation of wrongdoing and, therefore, their reappointments are without prejudice to:
1. Proceeding with investigation of appellants with pending administrative cases, and where investigations have
been finished, to promptly, render the appropriate decisions;
2. The filing of appropriate administrative complaints against appellants with derogatory reports or information if
evidence so warrants.
SO ORDERED. 18
On July 15, 1988, Commissioner Mison, represented by the Solicitor General, filed a motion for reconsideration Acting on the
motion, the Civil Service Commission, on September 20, 1988, denied reconsideration. 19
On October 20, 1988, Commissioner Mison instituted certiorari proceedings with this Court, docketed, as above-stated, as G.R.
No. 85310 of this Court.
On November 16,1988, the Civil Service Commission further disposed the appeal (from the resolution of the Reorganization
Appeals Board) of five more employees, holding as follows:
WHEREFORE, it is hereby ordered that:
1. Appellants be immediately reappointed to positions of comparable or equivalent rank in the Bureau of

Customs without loss of seniority rights; and
2. Appellants be paid their back salaries to be reckoned from the date of their illegal termination based on the
rates under the approved new staffing pattern but not lower than their former salaries.
This action of the Commission should not, however, be interpreted as an exoneration of the herein appellants from any
accusation of any wrongdoing and therefore, their reappointments are without prejudice to:
1. Proceeding with investigation of appellants with pending administrative cases, if any, and where
investigations have been finished, to promptly, render the appropriate decisions; and
2. The filing of appropriate administrative complaints against appellant with derogatory reports or information, if
any, and if evidence so warrants.
SO ORDERED. 20
On January 6, 1989, Commissioner Mison challenged the Civil Service Commission's Resolution in this Court; his petitioner has
been docketed herein as G.R. No. 86241. The employees ordered to be reinstated are Senen Dimaguila, Romeo Arabe,
Bemardo Quintong,Gregorio Reyes, and Romulo Badillo. 21
On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE SECURITY OF TENURE OF CIVIL SERVICE
OFFICERS AND EMPLOYEES IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION," 22 was signed into law.
Under Section 7, thereof:
Sec. 9. All officers and employees who are found by the Civil Service Commission to have been separated in violation
of the provisions of this Act, shall be ordered reinstated or reappointed as the case may be without loss of seniority and
shall be entitled to full pay for the period of separation. Unless also separated for cause, all officers and employees,
including casuals and temporary employees, who have been separated pursuant to reorganization shall, if entitled
thereto, be paid the appropriate separation pay and retirement and other benefits under existing laws within ninety (90)
days from the date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as
the case may be: Provided, That application for clearance has been filed and no action thereon has been made by the
corresponding department or agency. Those who are not entitled to said benefits shall be paid a separation gratuity in
the amount equivalent to one (1) month salary for every year of service. Such separation pay and retirement benefits
shall have priority of payment out of the savings of the department or agency concerned. 23
On June 23, 1988, Benedicto Amasa and William Dionisio, customs examiners appointed by Commissioner Mison pursuant to
the ostensible reorganization subject of this controversy, petitioned the Court to contest the validity of the statute. The petition is
docketed as G.R. No. 83737.
On October 21, 1988, thirty-five more Customs officials whom the Civil Service Commission had ordered reinstated by its June
30,1988 Resolution filed their own petition to compel the Commissioner of Customs to comply with the said Resolution. The
petition is docketed as G.R. No. 85335.
On November 29, 1988, we resolved to consolidate all seven petitions.
On the same date, we resolved to set the matter for hearing on January 12, 1989. At the said hearing, the parties, represented
by their counsels (a) retired Justice Ruperto Martin; (b) retired Justice Lino Patajo. (c) former Dean Froilan Bacungan (d) Atty.
Lester Escobar (e) Atty. Faustino Tugade and (f) Atty. Alexander Padilla, presented their arguments. Solicitor General Francisco
Chavez argued on behalf of the Commissioner of Customs (except in G.R. 85335, in which he represented the Bureau of
Customs and the Civil Service Commission).lâwphî1.ñèt Former Senator Ambrosio Padilla also appeared and argued as amicus
curiae Thereafter, we resolved to require the parties to submit their respective memoranda which they did in due time.
There is no question that the administration may validly carry out a government reorganization — insofar as these cases are
concerned, the reorganization of the Bureau of Customs — by mandate not only of the Provisional Constitution, supra, but also
of the various Executive Orders decreed by the Chief Executive in her capacity as sole lawmaking authority under the 1986-
1987 revolutionary government. It should also be noted that under the present Constitution, there is a recognition, albeit implied,
that a government reorganization may be legitimately undertaken, subject to certain conditions. 24
The Court understands that the parties are agreed on the validity of a reorganization per se the only question being, as shall be
later seen: What is the nature and extent of this government reorganization?
The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain
parties to sue, 25 and other technical objections, for two reasons, "[b]ecause of the demands of public interest, including the need
for stability in the public service,"26 and because of the serious implications of these cases on the administration of the Philippine
civil service and the rights of public servants.
The urgings in G.R. Nos. 85335 and 85310, that the Civil Service Commission's Resolution dated June 30, 1988 had attained a
character of finality for failure of Commissioner Mison to apply for judicial review or ask for reconsideration seasonalbly under
Presidential Decree No. 807, 27 or under Republic Act No. 6656, 28 or under the Constitution, 29 are likewise rejected. The
records show that the Bureau of Customs had until July 15, 1988 to ask for reconsideration or come to this Court pursuant to
Section 39 of Presidential Decree No. 807. The records likewise show that the Solicitor General filed a motion for
reconsideration on July 15, 1988.30 The Civil Service Commission issued its Resolution denying reconsideration on September
20, 1988; a copy of this Resolution was received by the Bureau on September 23, 1988.31 Hence the Bureau had until October
23, 1988 to elevate the matter on certiorari to this Court.32 Since the Bureau's petition was filed on October 20, 1988, it was filed
on time.
We reject, finally, contentions that the Bureau's petition (in G.R. 85310) raises no jurisdictional questions, and is therefore bereft
of any basis as a petition for certiorari under Rule 65 of the Rules of Court. 33 We find that the questions raised in Commissioner
Mison's petition (in G.R. 85310) are, indeed, proper for certiorari, if by "jurisdictional questions" we mean questions having to do
with "an indifferent disregard of the law, arbitrariness and caprice, or omission to weigh pertinent considerations, a decision
arrived at without rational deliberation, 34 as distinguished from questions that require "digging into the merits and unearthing
errors of judgment 35 which is the office, on the other hand, of review under Rule 45 of the said Rules. What cannot be denied is
the fact that the act of the Civil Service Commission of reinstating hundreds of Customs employees Commissioner Mison had
separated, has implications not only on the entire reorganization process decreed no less than by the Provisional Constitution,
but on the Philippine bureaucracy in general; these implications are of such a magnitude that it cannot be said that — assuming
that the Civil Service Commission erred — the Commission committed a plain "error of judgment" that Aratuc says cannot be
corrected by the extraordinary remedy of certiorari or any special civil action. We reaffirm the teaching of Aratuc — as regards
recourse to this Court with respect to rulings of the Civil Service Commission — which is that judgments of the Commission may
be brought to the Supreme Court through certiorari alone, under Rule 65 of the Rules of Court.
In Aratuc we declared:
It is once evident from these constitutional and statutory modifications that there is 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. The framers of the new Constitution must be presumed to have
definite knowledge of what it means to make the decisions, orders and rulings of the Commission "subject to review by
the Supreme Court'. And since instead of maintaining that provision intact, it ordained that the Commission's actuations
be instead 'brought to the Supreme Court on certiorari", We cannot insist that there was no intent to change the nature
of the remedy, considering that the limited scope of certiorari, compared to a review, is well known in remedial law.36
We observe no fundamental difference between the Commission on Elections and the Civil Service Commission (or the
Commission on Audit for that matter) in terms of the constitutional intent to leave the constitutional bodies alone in the
enforcement of laws relative to elections, with respect to the former, and the civil service, with respect to the latter (or the audit of
government accounts, with respect to the Commission on Audit). As the poll body is the "sole judge" 37 of all election cases, so is
the Civil Service Commission the single arbiter of all controversies pertaining to the civil service.
It should also be noted that under the new Constitution, as under the 1973 Charter, "any decision, order, or ruling of each
Commission may be brought to the Supreme Court on certiorari," 38 which, as Aratuc tells us, "technically connotes something
less than saying that the same 'shall be subject to review by the Supreme Court,' " 39 which in turn suggests an appeal by
petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service Commission is limited
to complaints of lack or excess of jurisdiction or grave abuse of discretion tantamount to lack or excess of jurisdiction, complaints
that justify certiorari under Rule 65.
While Republic Act No. 6656 states that judgments of the Commission are "final and executory" 40 and hence, unappealable,
under Rule 65, certiorari precisely lies in the absence of an appeal. 41
Accordingly, we accept Commissioner Mison petition (G.R. No. 85310) which clearly charges the Civil Service Commission with
grave abuse of discretion, a proper subject of certiorari, although it may not have so stated in explicit terms.
As to charges that the said petition has been filed out of time, we reiterate that it has been filed seasonably. It is to be stressed
that the Solicitor General had thirty days from September 23, 1988 (the date the Resolution, dated September 20,1988, of the
Civil Service Commission, denying reconsideration, was received) to commence the instant certiorari proceedings. As we stated,
under the Constitution, an aggrieved party has thirty days within which to challenge "any decision, order, or ruling" 42 of the
Commission. To say that the period should be counted from the Solicitor's receipt of the main Resolution, dated June 30, 1988,
is to say that he should not have asked for reconsideration But to say that is to deny him the right to contest (by a motion for
reconsideration) any ruling, other than the main decision, when, precisely, the Constitution gives him such a right. That is also to
place him at a "no-win" situation because if he did not move for a reconsideration, he would have been faulted for
demanding certiorari too early, under the general rule that a motion for reconsideration should preface a resort to a special civil
action. 43 Hence, we must reckon the thirty-day period from receipt of the order of denial.
We come to the merits of these cases.
G.R. Nos. 81954, 81967, 82023, and 85335:
The Case for the Employees
The petitioner in G.R. No. 81954, Cesar Dario was one of the Deputy Commissioners of the Bureau of Customs until his relief on
orders of Commissioner Mison on January 26, 1988. In essence, he questions the legality of his dismiss, which he alleges was
upon the authority of Section 59 of Executive Order No. 127, supra, hereinbelow reproduced as follows:
SEC. 59. New Structure and Pattern. Upon approval of this Executive Order, the officers and employees of the Ministry
shall, in a holdover capacity, continue to perform their respective duties and responsibilities and receive the
corresponding salaries and benefits unless in the meantime they are separated from government service pursuant to
Executive Order No. 17 (1986) or Article III of the Freedom Constitution.
The new position structure and staffing pattern of the Ministry shall be approved and prescribed by the Minister within
one hundred twenty (120) days from the approval of this Executive Order and the authorized positions created
hereunder shall be filled with regular appointments by him or by the President, as the case may be. Those incumbents
whose positions are not included therein or who are not reappointed shall be deemed separated from the service.
Those separated from the service shall receive the retirement benefits to which they may be entitled under existing
laws, rules and regulations. Otherwise, they shall be paid the equivalent of one month basic salary for every year of
service, or the equivalent nearest fraction thereof favorable to them on the basis of highest salary received but in no
case shall such payment exceed the equivalent of 12 months salary.
No court or administrative body shall issue any writ of preliminary injunction or restraining order to enjoin the
separation/replacement of any officer or employee effected under this Executive Order.44
a provision he claims the Commissioner could not have legally invoked. He avers that he could not have been legally deemed to
be an "[incumbent] whose [position] [is] not included therein or who [is] not reappointed"45 to justify his separation from the
service. He contends that neither the Executive Order (under the second paragraph of the section) nor the staffing pattern
proposed by the Secretary of Finance 46 abolished the office of Deputy Commissioner of Customs, but, rather, increased it to
three. 47 Nor can it be said, so he further maintains, that he had not been "reappointed" 48 (under the second paragraph of the
section) because "[[r]eappointment therein presupposes that the position to which it refers is a new one in lieu of that which has
been abolished or although an existing one, has absorbed that which has been abolished." 49 He claims, finally, that under the
Provisional Constitution, the power to dismiss public officials without cause ended on February 25, 1987, 50 and that thereafter,
public officials enjoyed security of tenure under the provisions of the 1987 Constitution.51
Like Dario Vicente Feria, the petitioner in G.R. No. 81967, was a Deputy Commissioner at the Bureau until his separation
directed by Commissioner Mison. And like Dario he claims that under the 1987 Constitution, he has acquired security of tenure
and that he cannot be said to be covered by Section 59 of Executive Order No. 127, having been appointed on April 22, 1986 —
during the effectivity of the Provisional Constitution. He adds that under Executive Order No. 39, "ENLARGING THE POWERS
AND FUNCTIONS OF THE COMMISSIONER OF CUSTOMS,"52 the Commissioner of Customs has the power "[t]o appoint all
Bureau personnel, except those appointed by the President," 53 and that his position, which is that of a Presidential appointee, is
beyond the control of Commissioner Mison for purposes of reorganization.
The petitioners in G.R. No. 82023, collectors and examiners in venous ports of the Philippines, say, on the other hand, that the
purpose of reorganization is to end corruption at the Bureau of Customs and that since there is no finding that they are guilty of
corruption, they cannot be validly dismissed from the service.
The Case for Commissioner Mison
In his comments, the Commissioner relies on this Court's resolution in Jose v. Arroyo54 in which the following statement appears
in the last paragraph thereof:
The contention of petitioner that Executive Order No. 127 is violative of the provision of the 1987 Constitution
guaranteeing career civil service employees security of tenure overlooks the provisions of Section 16, Article XVIII
(Transitory Provisions) which explicitly authorize the removal of career civil service employees "not for cause but as a
result of the reorganization pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the
ratification of this Constitution." By virtue of said provision, the reorganization of the Bureau of Customs under Executive
Order No. 127 may continue even after the ratification of the Constitution, and career civil service employees may be
separated from the service without cause as a result of such reorganization. 55
For this reason, Mison posits, claims of violation of security of tenure are allegedly no defense. He further states that the
deadline prescribed by the Provisional Constitution (February 25, 1987) has been superseded by the 1987 Constitution,
specifically, the transitory provisions thereof, 56 which allows a reorganization thereafter (after February 25, 1987) as this very
Court has so declared in Jose v. Arroyo. Mison submits that contrary to the employees' argument, Section 59 of Executive Order
No. 127 is applicable (in particular, to Dario and Feria in the sense that retention in the Bureau, under the Executive Order,
depends on either retention of the position in the new staffing pattern or reappointment of the incumbent, and since the
dismissed employees had not been reappointed, they had been considered legally separated. Moreover, Mison proffers that
under Section 59 incumbents are considered on holdover status, "which means that all those positions were considered
vacant." 57 The Solicitor General denies the applicability of Palma-Fernandez v. De la Paz 58 because that case supposedly
involved a mere transfer and not a separation. He rejects, finally, the force and effect of Executive Order Nos. 17 and 39 for the
reason that Executive Order No. 17, which was meant to implement the Provisional Constitution, 59 had ceased to have force
and effect upon the ratification of the 1987 Constitution, and that, under Executive Order No. 39, the dismissals contemplated
were "for cause" while the separations now under question were "not for cause" and were a result of government reorganize
organization decreed by Executive Order No. 127. Anent Republic Act No. 6656, he expresses doubts on the constitutionality of
the grant of retroactivity therein (as regards the reinforcement of security of tenure) since the new Constitution clearly allows
reorganization after its effectivity.
G.R. Nos. 85310 and 86241
The Position of Commissioner Mison

Commissioner's twin petitions are direct challenges to three rulings of the Civil Service Commission: (1) the Resolution, dated
June 30, 1988, reinstating the 265 customs employees above-stated; (2) the Resolution, dated September 20, 1988, denying
reconsideration; and (3) the Resolution, dated November 16, 1988, reinstating five employees. The Commissioner's arguments
are as follows:
1. The ongoing government reorganization is in the nature of a "progressive" 60 reorganization "impelled by the need to overhaul
the entire government bureaucracy" 61 following the people power revolution of 1986;
2. There was faithful compliance by the Bureau of the various guidelines issued by the President, in particular, as to deliberation,
and selection of personnel for appointment under the new staffing pattern;
3. The separated employees have been, under Section 59 of Executive Order No. 127, on mere holdover standing, "which
means that all positions are declared vacant;" 62
4. Jose v. Arroyo has declared the validity of Executive Order No. 127 under the transitory provisions of the 1987 Constitution;
5. Republic Act No. 6656 is of doubtful constitutionality.
The Ruling of the Civil Service Commission
The position of the Civil Service Commission is as follows:
1. Reorganizations occur where there has been a reduction in personnel or redundancy of functions; there is no showing that the
reorganization in question has been carried out for either purpose — on the contrary, the dismissals now disputed were carried
out by mere service of notices;
2. The current Customs reorganization has not been made according to Malacañ;ang guidelines; information on file with the
Commission shows that Commissioner Mison has been appointing unqualified personnel;
3. Jose v. Arroyo, in validating Executive Order No. 127, did not countenance illegal removals;
4. Republic Act No. 6656 protects security of tenure in the course of reorganizations.
The Court's ruling
Reorganization, Fundamental Principles of. —
I.
The core provision of law involved is Section 16 Article XVIII, of the 1987 Constitution. We quote:
Sec. 16. Career civil service employees separated from the service not for cause but as a result of the reorganization
pursuant to Proclamation No. 3 dated March 25, 1986 and the reorganization following the ratification of this
Constitution shag be entitled to appropriate separation pay and to retirement and other benefits accruing to them under
the laws of general application in force at the time of their separation. In lieul thereof, at the option of the employees,
they may be considered for employment in the Government or in any of its subdivisions, instrumentalities, or agencies,
including government-owned or controlled corporations and their subsidiaries. This provision also applies to career
officers whose resignation, tendered in line with the existing policy, had been accepted. 63
The Court considers the above provision critical for two reasons: (1) It is the only provision — in so far as it mentions removals
not for cause — that would arguably support the challenged dismissals by mere notice, and (2) It is the single existing law on
reorganization after the ratification of the 1987 Charter, except Republic Act No. 6656, which came much later, on June 10,
1988. [Nota been Executive Orders No. 116 (covering the Ministry of Agriculture & Food), 117 (Ministry of Education, Culture &
Sports), 119 (Health), 120 (Tourism), 123 (Social Welfare & Development), 124 (Public Works & Highways), 125 transportation
& Communications), 126 (Labor & Employment), 127 (Finance), 128 (Science & Technology), 129 (Agrarian Reform), 131
(Natural Resources), 132 (Foreign Affairs), and 133 (Trade & Industry) were all promulgated on January 30,1987, prior to the
adoption of the Constitution on February 2, 1987].64
It is also to be observed that unlike the grants of power to effect reorganizations under the past Constitutions, the above
provision comes as a mere recognition of the right of the Government to reorganize its offices, bureaus, and instrumentalities.
Under Section 4, Article XVI, of the 1935 Constitution:
Section 4. All officers and employees in the existing Government of the Philippine Islands shall continue in office until
the Congress shall provide otherwise, but all officers whose appointments are by this Constitution vested in the
President shall vacate their respective office(s) upon the appointment and qualification of their successors, if such
appointment is made within a period of one year from the date of the inauguration of the Commonwealth of the
Philippines. 65
Under Section 9, Article XVII, of the 1973 Charter:

Section 9. All officials and employees in the existing Government of the Republic of the Philippines shall continue in
office until otherwise provided by law or decreed by the incumbent President of the Philippines, but all officials whose
appointments are by this Constitution vested in the Prime Minister shall vacate their respective offices upon the
appointment and qualification of their successors. 66
The Freedom Constitution is, as earlier seen, couched in similar language:
SECTION 2. All elective and appointive officials and employees under the 1973 Constitution shall continue in office until
otherwise provided by proclamation or executive order or upon the appointment and qualification of their successors, if
such is made within a period of one year from February 25, 1986.67
Other than references to "reorganization following the ratification of this Constitution," there is no provision for "automatic"
vacancies under the 1987 Constitution.
Invariably, transition periods are characterized by provisions for "automatic" vacancies. They are dictated by the need to hasten
the passage from the old to the new Constitution free from the "fetters" of due process and security of tenure.
At this point, we must distinguish removals from separations arising from abolition of office (not by virtue of the Constitution) as a
result of reorganization carried out by reason of economy or to remove redundancy of functions. In the latter case, the
Government is obliged to prove good faith.68 In case of removals undertaken to comply with clear and explicit constitutional
mandates, the Government is not hard put to prove anything, plainly and simply because the Constitution allows it.
Evidently, the question is whether or not Section 16 of Article XVIII of the 1987 Constitution is a grant of a license upon the
Government to remove career public officials it could have validly done under an "automatic" vacancy-authority and to remove
them without rhyme or reason.
As we have seen, since 1935, transition periods have been characterized by provisions for "automatic" vacancies. We take the
silence of the 1987 Constitution on this matter as a restraint upon the Government to dismiss public servants at a moment's
notice.
What is, indeed, apparent is the fact that if the present Charter envisioned an "automatic" vacancy, it should have said so in
clearer terms, as its 1935, 1973, and 1986 counterparts had so stated.
The constitutional "lapse" means either one of two things: (1) The Constitution meant to continue the reorganization under the
prior Charter (of the Revolutionary Government), in the sense that the latter provides for "automatic" vacancies, or (2) It meant to
put a stop to those 'automatic" vacancies. By itself, however, it is ambiguous, referring as it does to two stages of reorganization
— the first, to its conferment or authorization under Proclamation No. 3 (Freedom Charter) and the second, to its implementation
on its effectivity date (February 2, 1987).lâwphî1.ñèt But as we asserted, if the intent of Section 16 of Article XVIII of the 1987
Constitution were to extend the effects of reorganize tion under the Freedom Constitution, it should have said so in clear terms.
It is illogical why it should talk of two phases of reorganization when it could have simply acknowledged the continuing effect of
the first reorganization.
Second, plainly the concern of Section 16 is to ensure compensation for victims" of constitutional revamps — whether under the
Freedom or existing Constitution — and only secondarily and impliedly, to allow reorganization. We turn to the records of the
Constitutional Commission:
INQUIRY OF MR. PADILLA
On the query of Mr. Padilla whether there is a need for a specific reference to Proclamation No. 3 and not merely state
"result of the reorganization following the ratification of this Constitution', Mr. Suarez, on behalf of the Committee,
replied that it is necessary, inasmuch as there are two stages of reorganization covered by the Section.
Mr. Padilla pointed out that since the proposal of the Commission on Government Reorganization have not been
implemented yet, it would be better to use the phrase "reorganization before or after the ratification of the Constitution'
to simplify the Section. Mr. Suarez instead suggested the phrase "as a result of the reorganization effected before or
after the ratification of the Constitution' on the understanding that the provision would apply to employees terminated
because of the reorganization pursuant to Proclamation No. 3 and even those affected by the reorganization during the
Marcos regime. Additionally, Mr. Suarez pointed out that it is also for this reason that the Committee specified the two
Constitutions the Freedom Constitution — and the 1986 [1987] Constitution. 69
Simply, the provision benefits career civil service employees separated from the service. And the separation contemplated must
be due to or the result of (1) the reorganization pursuant to Proclamation No. 3 dated March 25, 1986, (2) the reorganization
from February 2, 1987, and (3) the resignations of career officers tendered in line with the existing policy and which resignations
have been accepted. The phrase "not for cause" is clearly and primarily exclusionary, to exclude those career civil service
employees separated "for cause." In other words, in order to be entitled to the benefits granted under Section 16 of Article XVIII
of the Constitution of 1987, two requisites, one negative and the other positive, must concur, to wit:
1. the separation must not be for cause, and
2. the separation must be due to any of the three situations mentioned above.
By its terms, the authority to remove public officials under the Provisional Constitution ended on February 25, 1987, advanced
by jurisprudence to February 2, 1987. 70 It Can only mean, then, that whatever reorganization is taking place is upon the
authority of the present Charter, and necessarily, upon the mantle of its provisions and safeguards. Hence, it can not be
legitimately stated that we are merely continuing what the revolutionary Constitution of the Revolutionary Government had
started. We are through with reorganization under the Freedom Constitution — the first stage. We are on the second stage —
that inferred from the provisions of Section 16 of Article XVIII of the permanent basic document.
This is confirmed not only by the deliberations of the Constitutional Commission, supra, but is apparent from the Charter's own
words. It also warrants our holding in Esguerra and Palma-Fernandez, in which we categorically declared that after February 2,
1987, incumbent officials and employees have acquired security of tenure, which is not a deterrent against separation by
reorganization under the quondam fundamental law.
Finally, there is the concern of the State to ensure that this reorganization is no "purge" like the execrated reorganizations under
martial rule. And, of course, we also have the democratic character of the Charter itself.
Commissioner Mison would have had a point, insofar as he contends that the reorganization is open-ended ("progressive"), had
it been a reorganization under the revolutionary authority, specifically of the Provisional Constitution. For then, the power to
remove government employees would have been truly wide ranging and limitless, not only because Proclamation No. 3
permitted it, but because of the nature of revolutionary authority itself, its totalitarian tendencies, and the monopoly of power in
the men and women who wield it.
What must be understood, however, is that notwithstanding her immense revolutionary powers, the President was, nevertheless,
magnanimous in her rule. This is apparent from Executive Order No. 17, which established safeguards against the strong arm
and ruthless propensity that accompanies reorganizations — notwithstanding the fact that removals arising therefrom were "not
for cause," and in spite of the fact that such removals would have been valid and unquestionable. Despite that, the Chief
Executive saw, as we said, the "unnecessary anxiety and demoralization" in the government rank and file that reorganization
was causing, and prescribed guidelines for personnel action. Specifically, she said on May 28, 1986:
WHEREAS, in order to obviate unnecessary anxiety and demoralization among the deserving officials and employees,
particularly in the career civil service, it is necessary to prescribe the rules and regulations for implementing the said
constitutional provision to protect career civil servants whose qualifications and performance meet the standards of
service demanded by the New Government, and to ensure that only those found corrupt, inefficient and undeserving are
separated from the government service; 71
Noteworthy is the injunction embodied in the Executive Order that dismissals should be made on the basis of findings of
inefficiency, graft, and unfitness to render public service.*
The President's Memorandum of October 14, 1987 should furthermore be considered. We quote, in part:
Further to the Memorandum dated October 2, 1987 on the same subject, I have ordered that there will be no further
layoffs this year of personnel as a result of the government reorganization. 72
Assuming, then, that this reorganization allows removals "not for cause" in a manner that would have been permissible in a
revolutionary setting as Commissioner Mison so purports, it would seem that the Commissioner would have been powerless, in
any event, to order dismissals at the Customs Bureau left and right. Hence, even if we accepted his "progressive" reorganization
theory, he would still have to come to terms with the Chief Executive's subsequent directives moderating the revolutionary
authority's plenary power to separate government officials and employees.
Reorganization under the 1987 Constitution, Nature, Extent, and Limitations of; Jose v. Arroyo, clarified. —
The controversy seems to be that we have, ourselves, supposedly extended the effects of government reorganization under the
Provisional Constitution to the regime of the 1987 Constitution. Jose v. Arroyo73 is said to be the authority for this argument.
Evidently, if Arroyo indeed so ruled, Arroyo would be inconsistent with the earlier pronouncement of Esguerra and the later
holding of Palma-Fernandez. The question, however, is: Did Arroyo, in fact, extend the effects of reorganization under the
revolutionary Charter to the era of the new Constitution?
There are a few points about Arroyo that have to be explained. First, the opinion expressed therein that "[b]y virtue of said
provision the reorganization of the Bureau of Customs under Executive Order No. 127 may continue even after the ratification of
this constitution and career civil service employees may be separated from the service without cause as a result of such
reorganization" 74 is in the nature of an obiter dictum. We dismissed Jose's petition 75 primarily because it was "clearly
premature, speculative, and purely anticipatory, based merely on newspaper reports which do not show any direct or threatened
injury," 76 it appearing that the reorganization of the Bureau of Customs had not been, then, set in motion. Jose therefore had no
cause for complaint, which was enough basis to dismiss the petition. The remark anent separation "without cause" was therefore
not necessary for the disposition of the case. In Morales v. Parades,77 it was held that an obiter dictum "lacks the force of an
adjudication and should not ordinarily be regarded as such."78
Secondly, Arroyo is an unsigned resolution while Palma Fernandez is a full-blown decision, although both are en banc cases.
While a resolution of the Court is no less forceful than a decision, the latter has a special weight.
Thirdly, Palma-Fernandez v. De la Paz comes as a later doctrine. (Jose v. Arroyo was promulgated on August 11, 1987
while Palma-Fernandez was decided on August 31, 1987.) It is well-established that a later judgment supersedes a prior one in
case of an inconsistency.
As we have suggested, the transitory provisions of the 1987 Constitution allude to two stages of the reorganization, the first
stage being the reorganization under Proclamation No. 3 — which had already been consummated — the second stage being
that adverted to in the transitory provisions themselves — which is underway. Hence, when we spoke, in Arroyo, of
reorganization after the effectivity of the new Constitution, we referred to the second stage of the reorganization. Accordingly, we
cannot be said to have carried over reorganization under the Freedom Constitution to its 1987 counterpart.
Finally, Arroyo is not necessarily incompatible with Palma-Fernandez (or Esguerra).
As we have demonstrated, reorganization under the aegis of the 1987 Constitution is not as stern as reorganization under the
prior Charter. Whereas the latter, sans the President's subsequently imposed constraints, envisioned a purgation, the same
cannot be said of the reorganization inferred under the new Constitution because, precisely, the new Constitution seeks to usher
in a democratic regime. But even if we concede ex gratia argumenti that Section 16 is an exception to due process and no-
removal-"except for cause provided by law" principles enshrined in the very same 1987 Constitution, 79 which may possibly
justify removals "not for cause," there is no contradiction in terms here because, while the former Constitution left the axe to fall
where it might, the present organic act requires that removals "not for cause" must be as a result of reorganization. As we
observed, the Constitution does not provide for "automatic" vacancies. It must also pass the test of good faith — a test not
obviously required under the revolutionary government formerly prevailing, but a test well-established in democratic societies
and in this government under a democratic Charter.
When, therefore, Arroyo permitted a reorganization under Executive Order No. 127 after the ratification of the 1987
Constitution, Arroyo permitted a reorganization provided that it is done in good faith. Otherwise, security of tenure would be an
insuperable implement. 80
Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. 81 As a general rule, a
reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that
event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that
case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation
or removal, is done for political reasons or purposely to defeat sty of tenure, or otherwise not in good faith, no valid "abolition'
takes place and whatever "abolition' is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of
nomenclature of positions, 82 or where claims of economy are belied by the existence of ample funds. 83
It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are not, as a consequence, imposing
a "cause" for restructuring. Retrenchment in the course of a reorganization in good faith is still removal "not for cause," if by
"cause" we refer to "grounds" or conditions that call for disciplinary action.**
Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case. However,
under Republic Act No. 6656, we are told:
SEC. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and
hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or
rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the
service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following
circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving
rise to a claim for reinstatement or reappointment by an aggrieved party: (a) Where there is a significant increase in the
number of positions in the new staffing pattern of the department or agency concerned; (b) Where an office is abolished
and another performing substantially the same functions is created; (c) Where incumbents are replaced by those less
qualified in terms of status of appointment, performance and merit; (d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified offices perform substantially the same functions as the original
offices; (e) Where the removal violates the order of separation provided in Section 3 hereof. 84
It is in light hereof that we take up questions about Commissioner Mison's good faith, or lack of it.
Reorganization of the Bureau of Customs,

Lack of Good Faith in. —
The Court finds that after February 2, 1987 no perceptible restructuring of the Customs hierarchy — except for the change of
personnel — has occurred, which would have justified (an things being equal) the contested dismisses. The contention that the
staffing pattern at the Bureau (which would have furnished a justification for a personnel movement) is the same s pattern
prescribed by Section 34 of Executive Order No. 127 already prevailing when Commissioner Mison took over the Customs helm,
has not been successfully contradicted 85 There is no showing that legitimate structural changes have been made — or a
reorganization actually undertaken, for that matter — at the Bureau since Commissioner Mison assumed office, which would
have validly prompted him to hire and fire employees. There can therefore be no actual reorganization to speak of, in the sense,
say, of reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions, but
a revamp of personnel pure and simple.
The records indeed show that Commissioner Mison separated about 394 Customs personnel but replaced them with 522 as of
August 18, 1988. 86 This betrays a clear intent to "pack" the Bureau of Customs. He did so, furthermore, in defiance of the
President's directive to halt further layoffs as a consequence of reorganization. 87 Finally, he was aware that layoffs should
observe the procedure laid down by Executive Order No. 17.
We are not, of course, striking down Executive Order No. 127 for repugnancy to the Constitution. While the act is valid, still and
all, the means with which it was implemented is not. 88
Executive Order No. 127, Specific Case of. —

With respect to Executive Order No. 127, Commissioner Mison submits that under Section 59 thereof, "[t]hose incumbents
whose positions are not included therein or who are not reappointed shall be deemed separated from the service." He submits
that because the 394 removed personnel have not been "reappointed," they are considered terminated. To begin with, the
Commissioner's appointing power is subject to the provisions of Executive Order No. 39. Under Executive Order No. 39, the
Commissioner of Customs may "appoint all Bureau personnel, except those appointed by the President." 89
Accordingly, with respect to Deputy Commissioners Cesar Dario and Vicente Feria, Jr., Commissioner Mison could not have
validly terminated them, they being Presidential appointees.
Secondly, and as we have asserted, Section 59 has been rendered inoperative according to our holding in Palma-Fernandez.
That Customs employees, under Section 59 of Executive Order No. 127 had been on a mere holdover status cannot mean that
the positions held by them had become vacant. In Palma-Fernandez, we said in no uncertain terms:
The argument that, on the basis of this provision, petitioner's term of office ended on 30 January 1987 and that she
continued in the performance of her duties merely in a hold over capacity and could be transferred to another position
without violating any of her legal rights, is untenable. The occupancy of a position in a hold-over capacity was conceived
to facilitate reorganization and would have lapsed on 25 February 1987 (under the Provisional Constitution), but
advanced to February 2, 1987 when the 1987 Constitution became effective (De Leon. et al., vs. Hon. Benjamin B.
Esquerra, et. al., G.R. No. 78059, 31 August 1987). After the said date the provisions of the latter on security of tenure
govern. 90
It should be seen, finally, that we are not barring Commissioner Mison from carrying out a reorganization under the transitory
provisions of the 1987 Constitution. But such a reorganization should be subject to the criterion of good faith.
Resume. —
In resume, we restate as follows:
1. The President could have validly removed government employees, elected or appointed, without cause but only before the
effectivity of the 1987 Constitution on February 2, 1987 (De Leon v. Esguerra, supra; Palma-Fernandez vs. De la Paz, supra); in
this connection, Section 59 (on non-reappointment of incumbents) of Executive Order No. 127 cannot be a basis for termination;
2. In such a case, dismissed employees shall be paid separation and retirement benefits or upon their option be given
reemployment opportunities (CONST. [1987], art. XVIII, sec. 16; Rep. Act No. 6656, sec. 9);
3. From February 2, 1987, the State does not lose the right to reorganize the Government resulting in the separation of career
civil service employees [CONST. (1987), supra] provided, that such a reorganization is made in good faith. (Rep. Act No.
6656, supra.)
G.R. No. 83737
This disposition also resolves G.R. No. 83737. As we have indicated, G.R. No. 83737 is a challenge to the validity of Republic
Act No. 6656. In brief, it is argued that the Act, insofar as it strengthens security of tenure 91 and as far as it provides for a
retroactive effect, 92 runs counter to the transitory provisions of the new Constitution on removals not for cause.
It can be seen that the Act, insofar as it provides for reinstatament of employees separated without "a valid cause and after due
notice and hearing" 93 is not contrary to the transitory provisions of the new Constitution. The Court reiterates that although the
Charter's transitory provisions mention separations "not for cause," separations thereunder must nevertheless be on account of
a valid reorganization and which do not come about automatically. Otherwise, security of tenure may be invoked. Moreover, it
can be seen that the statute itself recognizes removals without cause. However, it also acknowledges the possibility of the
leadership using the artifice of reorganization to frustrate security of tenure. For this reason, it has installed safeguards. There is
nothing unconstitutional about the Act.
We recognize the injury Commissioner Mison's replacements would sustain. We also commisserate with them. But our concern
is the greater wrong inflicted on the dismissed employees on account of their regal separation from the civil service.
WHEREFORE, THE RESOLUTIONS OF THE CIVIL SERVICE COMMISSION, DATED JUNE 30, 1988, SEPTEMBER 20,
1988, NOVEMBER 16, 1988, INVOLVED IN G.R. NOS. 85310, 85335, AND 86241, AND MAY 8, 1989, INVOLVED IN G.R. NO.
85310, ARE AFFIRMED.
THE PETITIONS IN G.R. NOS. 81954, 81967, 82023, AND 85335 ARE GRANTED. THE PETITIONS IN G.R. NOS. 83737,
85310 AND 86241 ARE DISMISSED.
THE COMMISSIONER OF CUSTOMS IS ORDERED TO REINSTATE THE EMPLOYEES SEPARATED AS A RESULT OF HIS
NOTICES DATED JANUARY 26, 1988.
THE EMPLOYEES WHOM COMMISSIONER MISON MAY HAVE APPOINTED AS REPLACEMENTS ARE ORDERED TO
VACATE THEIR POSTS SUBJECT TO THE PAYMENT OF WHATEVER BENEFITS THAT MAY BE PROVIDED BY LAW.
NO COSTS.
IT IS SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 94010 December 2, 1991
FELIPE EVARDONE, petitioner,

vs.
COMMISSION ON ELECTIONS, ALEXANDER APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL, respondents.
G.R. No. 95063 December 2, 1991
ALEXANDER R. APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL, petitioners,

vs.
COMMISSION ON ELECTIONS and MAYOR FELIPE EVARDONE, respondents.
Zosimo G. Alegre for Felipe Evardone.
Elmer C. Solidon for petitioners in G.R. No. 95063.
PADILLA, J.:
These two (2) consolidated petitions have their origin in en banc Resolution No. 90-0557 issued by the respondent Commission
on Elections (COMELEC) dated 20 June 1990 which approved the recommendation of the Election Registrar of Sulat, Eastern
Samar to hold and conduct the signing of the petition for recall of the incumbent Mayor of Sulat, Eastern Samar, on 14 July
1990.
G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate issuance of a restraining order and/or writ of
preliminary injunction to restrain the holding of the signing of the petition for recall on 14 July 1990.
G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en banc Resolution No. 90-0660 of the respondent
COMELEC nullifying the signing process held on 14 July 1990 in Sulat, Eastern Samar for the recall of Mayor Evardone of said
municipality and en banc Resolution No. 90-0777 denying petitioners' motion for reconsideration, on the basis of the temporary
restraining order issued by this Court on 12 July 1990 in G.R. No. 94010.
Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the Municipality of Sulat, Eastern Samar, having been
elected to the position during the 1988 local elections. He assumed office immediately after proclamation.
On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival (hereinafter referred to as Apelado, et al.)
filed a petition for the recall of Evardone with the Office of the Local Election Registrar, Municipality of Sulat.
In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No. 90-0557, approving the recommendation
of Mr. Vedasto B. Sumbilla, Election Registrar of Sulat, Eastern Samar, to hold on 14 July 1990 the signing of the petition for
recall against incumbent Mayor Evardone of the said Municipality.
On 10 July 1990, Evardone filed before this Court a petition for prohibition with urgent prayer for immediate issuance of
restraining order and/or writ of preliminary injunction, which was docketed as G.R. No. 94010.
On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO), effective immediately and continuing until
further orders from the Court, ordering the respondents to cease and desist from holding the signing of the petition for recall on
14 July 1990, pursuant to respondent COMELEC's Resolution No. 2272 dated 23 May 1990.
On the same day (12 July 1990), the notice of TRO was received by the Central Office of the respondent COMELEC. But it was
only on 15 July 1990 that the field agent of the respondent COMELEC received the telegraphic notice of the TRO—a day after
the completion of the signing process sought to be temporarily stopped by the TRO.
In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent COMELEC nullified the signing process held in
Sulat, Eastern Samar for being violative of the order (the TRO) of this Court in G.R. No. 94010. Apelado, et al., filed a motion for
reconsideration and on 29 August 1990, the respondent COMELEC denied said motion holding that:
. . . The critical date to consider is the service or notice of the Restraining Order on 12 July 1990 upon the principal i.e.
the Commission on Election, and not upon its agent in the field. 1
Hence, the present petition for review on certiorari in G.R. No. 95063 which seeks to set aside en banc Resolution No. 90-0660 of respondent COMELEC.
In G.R. No. 94010, Evardone contends that:
I. The COMELEC committed grave abuse of discretion in approving the recommendation of the Election Registrar of Sulat, Eastern Samar to hold the signing of the petition for recall without
giving petitioner his day in court.
II. The COMELEC likewise committed grave abuse of discretion amounting to lack or excess of jurisdiction in promulgating Resolution No. 2272 on May 22, 1990 which is null and void for
being unconstitutional. 2
In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing process of the petition for recall held on 14 July 1990 has been rendered nugatory by the TRO issued by this court in G.R.
No. 94010 dated 12 July 1990 but received by the COMELEC field agent only on 15 July 1990.
The principal issue for resolution by the Court is the constitutionality of Resolution No. 2272 promulgated by respondent COMELEC on 23 May 1990 by virtue of its powers under the Constitution and
Batas Pambansa Blg. 337 (Local Government Code). The resolution embodies the general rules and regulations on the recall of elective provincial, city and municipal officials.
Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas Pambansa Blg. 337 in favor of one to be enacted by Congress. Said Section 3 provides:
Sec. 3. The Congress shall enact a local government code shall provide for a more responsive and accountable local government structure instituted through a system of decentralization
with effective mechanisms of recall, initiative, and referendum, allocate among the different local government units their powers, responsibilities and resources, and provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties local officials, and all other matters relating to the organization operation of the local units.
Since there was, during the period material to this case, no local government code enacted by Congress after the effectivity of the 1987 Constitution nor any law for that matter on the subject of recall of
elected government officials, Evardone contends that there is no basis for COMELEC Resolution No. 2272 and that the recall proceedings in the case at bar is premature.
The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:
The constitutional provision does not refer only to a local government code which is in futurum but also in esse. It merely sets forth the guidelines which Congress will consider in amending
the provisions of the present Local Government Code. Pending the enactment of the amendatory law, the existing Local Government Code remains operative. The adoption of the 1987
Constitution did not abrogate the provisions of BP No. 337, unless a certain provision thereof is clearly irreconciliable with the provisions of the 1987 Constitution. In this case, Sections 54 to
59 of Batas Pambansa No. 337 are not inconsistent with the provisions of the Constitution. Hence, they are operative. 3
We find the contention of the respondent COMELEC meritorious.
Article XVIII, Section 3 of the 1987 Constitution express provides that all existing laws not inconsistent with the 1987 Constitution shall remain operative, until amended, repealed or revoked. Republic Act
No. 7160 providing for the Local Government Code of 1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said Act. But the Local
Government Code of 1991 will take effect only on 1 January 1992 and therefore the old Local Government Code (B.P. Blg. 337) is still the law applicable to the present case. Prior to the enactment of the
new Local Government Code, the effectiveness of B.P. Blg. 337 was expressly recognized in the proceedings of the 1986 Constitutional Commission. Thus—
MR. NOLLEDO. Besides, pending the enactment of a new Local Government Code under the report of the Committee on Amendments and Transitory Provisions, the former Local
Government Code, which is Batas Pambansa Blg. 337 shall continue to be effective until repealed by the Congress of the Philippines. 4
Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective officials. Section 59 expressly authorizes the respondent COMELEC to conduct and supervise the
process of and election on recall and in the exercise of such powers, promulgate the necessary rules and regulations.
The Election Code contains no special provisions on the manner of conducting elections for the recall of a local official. Any such election shall be conducted in the manner and under the rules on special
elections, unless otherwise provided by law or rule of the COMELEC. 5
Thus, pursuant to the rule-making power vested in respondent COMELEC, it
promulgated Resolution No. 2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and constitutional. Consequently, the
respondent COMELEC had the authority to approve the petition for recall and set the date for the signing of said petition.
The next issue for resolution is whether or not the TRO issued by this Court rendered nugatory the signing process of the
petition for recall held pursuant to Resolution No. 2272.
In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the Philippines, et al., 6 this Court held:
. . . What is sought in this suit is to enjoin respondents particularly respondent Commission from implementing Batas
Pambansa Blg. 86, specifically "from conducting, holding and undertaking the plebiscite provided for in said act." The
petition was filed on December 5, 1980. There was a plea for a restraining order, but Proclamation No. 2034 fixing the
date for such plebiscite on December 6, 1980 had been issued as far as back as November 11, 1980. Due this delay in
to this suit, attributable solely to petitioners, there was no time even to consider such a plea. The plebiscite was duly
held. The certificate of canvass and proclamation of the result disclosed that out of 2,409 total votes cast in such
plebiscite, 2,368 votes were cast in favor of the creation of the new municipality, which, according to the statute, will be
named municipality of Aguinaldo. There were only 40 votes cast against. As a result, such municipality was created.
There is no turning back the clock. The moot and academic character of this petition is thus apparent.
In the present case, the records show that Evardone knew of the Notice of Recall filed by Apelado, et al. on or about 21
February 1990 as evidenced by the Registry Return Receipt; yet, he was not vigilant in following up and determining the
outcome of such notice. Evardone alleges that it was only on or about 3 July 1990 that he came to know about the Resolution of
respondent COMELEC setting the signing of the petition for recall on 14 July 1990. But despite his urgent prayer for the
issuance of a TRO, Evardone filed the petition for prohibition only on 10 July 1990.
Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for recall took place just the same on the
scheduled date through no fault of the respondent COMELEC and Apelado, et al. The signing process was undertaken by the
constituents of the Municipality of Sulat and its Election Registrar in good faith and without knowledge of the TRO earlier issued
by this Court. As attested by Election Registrar Sumbilla, about 2,050 of the 6,090 registered voters of Sulat, Eastern Samar or
about 34% signed the petition for recall. As held in Parades vs. Executive Secretary 7 there is no turning back the clock.
The right to recall is complementary to the right to elect or appoint. It is included in the right of suffrage. It is based on
the theory that the electorate must maintain a direct and elastic control over public functionaries. It is also predicated
upon the idea that a public office is "burdened" with public interests and that the representatives of the people holding
public offices are simply agents or servants of the people with definite powers and specific duties to perform and to
follow if they wish to remain in their respective offices. 8
Whether or not the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor is a political question. It belongs to the realm of politics where only the people are the
judge. 9
"Loss of confidence is the formal withdrawal by an electorate of their trust in a person's ability to discharge his office
previously bestowed on him by the same electorate. 10 The constituents have made a judgment and their will to recall the
incumbent mayor (Evardone) has already been ascertained and must be afforded the highest respect. Thus, the signing process
held last 14 July 1990 in Sulat, Eastern Samar, for the recall of Mayor Felipe P. Evardone of said municipality is valid and has
legal effect.
However, recall at this time is no longer possible because of the limitation provided in Sec. 55 (2) of B.P. Blg, 337, which states:
Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held.— . . .
(2) No recall shall take place within two years from the date of the official's assumption of office or one year immediately
preceding a regular local election.
The Constitution has mandated a synchronized national and local election prior to 30 June 1992, or more specifically, as
provided for in Article XVIII, Sec. 5 — on the second Monday of May, 1992. 11 Thus, to hold an election on recall approximately
seven (7) months before the regular local election will be violative of the above provisions of the applicable Local Government
Code (B.P. Blg. 337)
ACCORDINGLY, both petitions are DISMISSED for having become moot and academic.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. L-49677 May 4, 1989
TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES, petitioner,

vs.
NATIONAL HOUSING CORPORATION and ATTY. VIRGILIO SY, as Officer-in-Charge of the Bureau of Labor
Relations, respondents.
Bonifacio V. Tupaz for petitioner.
The Government Corporate Counsel for respondent NHC.
Raul E. Espinosa for intervenor PACIWU.
REGALADO, J.:
The employees of the public sector comprise the largest bloc of workers in our national work force. Governmental bureaucracy
is continually being reorganized to cope with the growing complexity of the problems and needs of political and administrative
governance. As the increase in the number of government employees grows space, the need to enhance their welfare
correspondingly becomes more imperative. While it may be assumed that the Government is exerting efforts to advance the
interests of its employees, it is quite understandable that the employees themselves should actively seek arrangements where
by they can participate more meaningfully in management and employment relationships. There is, thus, a proliferation of unions
or employees' organizations, each seeking concomitant representational recognition.
The antecedent facts which led to the filing of this special civil action for certiorari are clear and undisputed. The juridical status
and relevant circumstances of respondent corporation have been established in a case of illegal dismissal filed against it, as
previously decided by the Court and hereinafter discussed. However, submitted this time for Our resolution is a controversy on
the propriety of and requirements for certification elections in government-owned or controlled corporations like the respondent.
Respondent National Housing Corporation (hereinafter referred to as NHC) is a corporation organized in 1959 in accordance
with Executive Order No. 399, otherwise known as the Uniform Charter of Government Corporations, dated January 1, 1951. Its
shares of stock are and have been one hundred percent (100%) owned by the Government from its incorporation under Act 459,
the former corporation law. The government entities that own its shares of stock are the Government Service Insurance System,
the Social Security System, the Development Bank of the Philippines, the National Investment and Development Corporation
and the People's Homesite and Housing Corporation. 1 Petitioner Trade Unions of the Philippines and Allied Services (TUPAS,
for brevity) is a legitimate labor organization with a chapter in NHC.
On July 13, 1977, TUPAS filed a petition for the conduct of a certification election with Regional Office No. IV of the Department
of Labor in order to determine the exclusive bargaining representative of the workers in NHC. It was claimed that its members
comprised the majority of the employees of the corporation. 2 The petition was dismissed by med-arbiter Eusebio M. Jimenez in
an order, dated November 7, 1977, holding that NHC "being a government-owned and/or controlled corporation its
employees/workers are prohibited to form, join or assist any labor organization for purposes of collective bargaining pursuant to
Section 1, Rule II, Book V of the Rules and Regulations Implementing the Labor Code." 3
From this order of dismissal, TUPAS appealed to the Bureau of Labor Relations 4 where, acting thereon in BLR Case No. A-984-
77 (RO4-MED-1090-77), Director Carmelo C. Noriel reversed the order of dismissal and ordered the holding of a certification
election. 5 This order was, however, set aside by Officer-in-Charge Virgilio S.J. Sy in his resolution of November 21, 1978 6 upon
a motion for reconsideration of respondent NHC.
In the instant petition for certiorari, TUPAS seeks the reversal of the said resolution and prays that a certification election be held
among the rank and file employees of NHC.
In retrospect, it will be recalled that in a former case of illegal dismissal involving the same respondent corporation, 7 We had
ruled that the employees of NHC and of other government owned or controlled corporations were governed by civil service laws,
rules and regulations pursuant to the 1973 Constitution which provided that "the civil service embraces every branch, agency,
subdivision and instrumentality of the government, including government-owned or controlled corporations." 8
It was therein stressed that to allow subsidiary corporations to be excluded from the civil service laws would be to permit the
circumvention or emasculation of the above-quoted constitutional provision. As perceptively analyzed therein, "(i)t would be
possible for a regular 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 corporation
rations 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 restraints of the open market nor to the terms and conditions of civil service employment."
The rule, however, was modified in the 1987 Constitution, the corresponding provision whereof declares that "(t)he civil service
embraces all branches, subdivisions, instrumentalities and agencies of the government, including government-owned or
controlled corporations with original charters." 9
Consequently, the civil service now covers only government owned or controlled corporations with original or legislative charters,
that is those created by an act of Congress or by special law, and not those incorporated under and pursuant to a general
legislation. As We recently held —
..., the situations sought to be avoided by the 1973 Constitution and expressed by this Court in the National
Housing Corporation case ... appear relegated to relative insignificance by the 1987 Constitutional provision
that the Civil Service embraces government-owned controlled corporations with original charters 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. 10
While the aforecited cases sought different reliefs, that is, reinstatement consequent to illegal dismissal, the same lis
mota determinative of the present special civil action was involved therein.
The workers or employees of NHC undoubtedly have the right to form unions or employees' organizations. The right to unionize
or to form organizations is now explicitly recognized and granted to employees in both the governmental and the private sectors.
The Bill of Rights provides that "(t)he right of the people, including those employed in the public and private sectors, to form
unions, associations or societies for purposes not contrary to law shall not be abridged" 11
This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on Social Justice and Human Rights, which
mandates that the State "shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and
peaceful concerted activities, including the right to strike in accordance with law ...."
Specifically with respect to government employees, the right to unionize is recognized in Paragraph (5), Section 2, Article IX
B 12 which provides that "(t)he right to self-organization shall not be denied to government employees." The rationale of and
justification for this innovation which found expression in the aforesaid provision was explained by its proponents as follows:
... The government is in a sense the repository of the national sovereignty and, in that respect, it must be held
in reverence if not in awe. It symbolizes the unity of the nation, but it does perform a mundane task as well. It is
an employer in every sense of the word except that terms and conditions of work are set forth through a Civil
Service Commission. The government is the biggest employer in the Philippines. There is an employer-
employee relationship and we all know that the accumulated grievances of several decades are now beginning
to explode in our faces among government workers who feel that the rights afforded by the Labor Code, for
example, to workers in the private sector have been effectively denied to workers in government in what looks
like a grotesque, (sic) a caricature of the equal protection of the laws. For example, ... there were many
occasions under the old government when wages and cost of living allowances were granted to workers in the
private sector but denied to workers in the government for some reason or another, and the government did not
even state the reasons why. The government employees were being discriminated against. As a general rule,
the majority of the world's countries now entertain public service unions. What they really add up to is that the
employees of the government form their own association. Generally, they do not bargain for wages because
these are fixed in the budget but they do acquire a forum where, among other things, professional and self-
development is (sic) promoted and encouraged. They also act as watchdogs of their own bosses so that when
graft and corruption is committed, generally, it is the unions who are no longer afraid by virtue of the armor of
self-organization that become the public's own allies for detecting graft and corruption and for exposing it.... 13
There is, therefore, no impediment to the holding of a certification election among the workers of NHC for it is clear that they are
covered by the Labor Code, the NHC being a government-owned and/or controlled corporation without an original charter.
Statutory implementation of the last cited section of the Constitution is found in Article 244 of the Labor Code, as amended by
Executive Order No. 111, thus:
... Right of employees in the public service — Employees of the government corporations established under the
Corporation Code shall have the right to organize and to bargain collectively with their respective employers. All
other employees in the civil service shall have the right to form associations for purposes not contrary to law.
The records do not show that supervening factual events have mooted the present action. It is meet, however, to also call
attention to the fact that, insofar as certification elections are concerned, subsequent statutory developments have rendered
academic even the distinction between the two types of government-owned or controlled corporations and the laws governing
employment relations therein, as hereinbefore discussed. For, whether the employees of NHC are covered by the Labor Code or
by the civil service laws, a certification election may be conducted.
For employees in corporations and entities covered by the Labor Code, the determination of the exclusive bargaining
representative is particularly governed by Articles 255 to 259 of said Code. Article 256 provides for the procedure when there is
a representation issue in organized establishments, while Article 257 covers unorganized establishments. These Labor Code
provisions are fleshed out by Rules V to VII, Book V of the Omnibus Implementing Rules.
With respect to other civil servants, that is, employees of all branches, subdivisions, instrumentalities and agencies of the
government including government-owned or controlled corporations with original charters and who are, therefore, covered by the
civil service laws, the guidelines for the exercise of their right to organize is provided for under Executive Order No. 180. Chapter
IV thereof, consisting of Sections 9 to 12, regulates the determination of the "sole and exclusive employees representative";
Under Section 12, "where there are two or more duly registered employees' organizations in the appropriate organization unit,
the Bureau of Labor Relations shall, upon petition order the conduct of certification election and shall certify the winner as the
exclusive representative of the rank-and-file employees in said organizational unit."
Parenthetically, note should be taken of the specific qualification in the Constitution that the State "shall guarantee the rights of
all workers to self-organization, collective bargaining, and peaceful concerted activities, including the right to strike
in accordance with law" and that they shall also participate in policy and decision-making processes affecting their rights and
benefits as may be provided by law." 14 (Emphasis supplied.)
ON THE FOREGOING CONSIDERATIONS, the assailed resolution of the Bureau of Labor Relations, dated November 21,
1978, is ANNULLED and SET ASIDE and the conduct of a certification election among the affected employees of respondent
National Housing Corporation in accordance with the rules therefor is hereby GRANTED.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 92140 February 19, 1991
REYNALDO D. LOPEZ, petitioner,

vs.
CIVIL SERVICE COMMISSION and ROMEO V. LUZ, JR., respondents.
Abad & Associates for petitioner.

Paterno D. Menzon Law Office for private respondent.
GUTIERREZ, JR., J.:
Petitioner Reynaldo Lopez assails the nullification by the Civil Service Commission of his appointment as Harbor Master of the
Manila South Harbor.
In 1983, petitioner Lopez, along with private respondent Romeo V. Luz, Jr. and Roberto Abellana, was appointed as Assistant
Harbor Master at Manila International Container Terminal, Manila South Harbor and Manila North Harbor, respectively.
Pursuant to Executive Order No. 125, the Ministry (now Department) of Transportation and Communications (DOTC) was
reorganized. Hence, the reduction of the number of Assistant Harbor Masters (now designated as Harbor Masters) in the
Philippine Ports Authority (PPA) from three (3) to two (2). A reevaluation of the qualifications of petitioner Lopez, Luz, and
Abellana was conducted by a placement committee of the PPA to determine who should assume the two positions. The PPA
General Manager, Rogelio A. Dayan, appointed petitioner Lopez as Harbor Master for the South Harbor after considering the
evaluation conducted by the Placement Committee of the PPA the results of which reveal that petitioner was the most
outstanding among the three. The evaluation was formally conducted and superseded the one earlier handled by a task force. It
took into account the following: education and training; experience, physical characteristics and personality traits; and
performance of each candidate. The records show that respondent Luz rated third.
Luz protested Lopez's appointment after it was approved by the Assistant Director of the Civil Service Field Office, Guillermo R.
Silva.
On February 15, 1989, the protest/appeal was denied by the PPA General Manager who explained that Luz was not qualified for
any of the two slots according to the over-all standing of the contenders.
Luz then appealed to the Civil Service Commission (CSC) which, on July 6, 1989, ruled that while the candidates were all
qualified, "there was no finding who among the three contenders is considered the most qualified and competent to merit
appointment . . ., the previous assessments of the candidates having been found defective and not in accordance with the law
and implementing regulations." The CSC directed that "comparative assessments" be made by an appropriate Placement
Committee. These assessments would then be the basis of the appointments.
On October 17, 1989, the CSC denied a motion for reconsideration filed by the PPA and ordered the submission of the results of
the re-assessment.
On November 10, 1989, the PPA submitted to the Commission the results of the re-assessment conducted by its Placement
Committee which was reconvened for that purpose. The results explained that the Committee utilized evaluation instruments
that have been validated for use in promotions to assess performance of the candidates, their education and training,
experience and outstanding accomplishments. It, however, noted certain constraints which led to the adoption of modified
measures. For instance, it noted the absence of an established instrument to determine Physical Characteristics and Personality
Traits so that it had to resort to an assessment conducted by a professional psychiatrist-consultant on the mental alertness,
reaction to pressure, personality and dependability of the candidates. Also, in the absence of complete performance appraisal
ratings of all the three candidates for the years 1987 to 1988, it utilized only the available ratings for two rating periods i.e., in
January-June 1986 and January-June 1987 in which all three candidates were rated. It did not rate outstanding
accomplishments due to the absence of a valid instrument, but it considered two (2) commendations given to Luz for his past
performance. Moreover, it did not measure each of the candidates' Potential which accounts for 25 points out of the total
standard points. It set the maximum score to a total of 70 points only. The comparative evaluation of the candidates for the
position of Harbor Master showed that petitioner Lopez garnered — 51 points, Abellana — 41.75 points, and respondent Luz —
39.75 points.
Despite this compliance by the PPA, the Commission, on February 14, 1990, found that the re-assessment was not in order. It
ruled that the immediate supervisor of respondent Luz was in the best position to assess the competence of the respondent and
not a psychiatric-consultant who was merely a contractual employee and susceptible to partiality. The Commission stressed that
the Placement Committee's current assessment ignored some of the performance appraisal ratings previously made on
respondent Luz, as well as the PPA 201 files containing only Luz's record of achievements. It also noted other factors which
allegedly would affect his personality traits rating. Thus, it directed the appointment of Luz as the Harbor Master instead of the
petitioner.
Hence, this petition.
Lopez now alleges that his constitutional right to due process of law has been violated because he was never informed or
notified of the appeal of respondent Luz, the entire proceedings held on the case, and the resolutions of the Commission. He
was never invited for comment during the pendency of the appeal. He allegedly learned about the appeal only after being
informed by the PPA that his appointment had been revoked and that respondent Luz was directed to assume the position.
The respect for the right to due process in actions before administrative agencies and constitutional commissions includes the
basic requirement of granting the person, whose appointment is being contested, an opportunity to be heard. It is conceded that
petitioner Lopez was merely a nominal party in the appeal such that the appellee therein was actually the PPA whose act of
appointing was being questioned. Nevertheless, the Commission should have taken into account the right of the subject person
involved to be informed of the appeal so that he may be given a chance to present his side. A fundamental requirement of
procedural due process demands that the interested parties must have an opportunity to present their case and the decision or
resolution should be supported by substantial evidence presented by the affected parties before the tribunal (Ang Tibay v. CIR,
69 Phil. 635 [1940]).
The petitioner asserts that the Civil Service Commission gravely and seriously erred in nullifying his appointment and instead
substituting its decision for that of the PPA. For its part, the respondent Commission alleged that the selection made by the PPA
was discriminatory against Luz and did not conform to the requirements of the law, because other performance ratings of Luz
were not given weight. It justified the reversal of the appointment by saying that the Constitution and Rep. Act No. 6656 require
that an appointment satisfies the merit and fitness standard, or that "the most qualified and competent shall be preferred."
The private respondent maintains basically the same arguments set forth by the respondent Commission.1âwphi1
The records explicitly show that the Placement Committee of the PPA disclosed the manner by which it assessed all the
candidates. It specifically took note of certain limitations like the absence of ratings of all candidates for certain periods which
prompted it to avail of those instruments showing data in which all three of the contenders were subjected to evaluation. This
was resorted to in the desire to achieve fairness to all candidates. It admitted having acknowledged other performance ratings
and commendations received by respondent Luz. However, all ratings considered, the Placement Committee was of the opinion
that the petitioner is the most qualified. The appointing power was given a fair and honest appraisal which fully considered the
strengths and weaknesses of the candidates. The petitioner was appointed.
The role of the Civil Service Commission in establishing a career service and in promoting the morale, efficiency, integrity,
responsiveness, and courtesy among civil servants is not disputed by petitioner Lopez. On the other hand, the discretionary
power of appointment delegated to the heads of departments or agencies of the government is not controverted by the
respondents. In the appointment, placement and promotion of civil service employees according to merit and fitness, it is the
appointing power, especially where it is assisted by a screening committee composed of persons who are in the best position to
screen the qualifications of the nominees, who should decide on the integrity, performance and capabilities of the future
appointees. Under Section 9 (h) Presidential Decree No. 807 which authorizes the respondent Commission to
(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of
presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and
disapprove those where the appointees do not possess the appropriate eligibility or required qualifications. An
appointment shall take effect immediately upon issue by the appointing authority if the appointee assumes his duties
immediately and shall remain effective until it is disapproved by the Commission, if this should take place, without
prejudice to the liability of the appointing authority for appointments issued in violation of existing laws or
rules; Provided, finally, that the Commission shall keep a record of appointments of all officers and employees in the
civil service. All appointments requiring the approval of the Commission as herein provided, shall be submitted to it by
the appointing authority within thirty days from issuance, otherwise, the appointment becomes ineffective thirty days
thereafter. (Emphasis supplied)
the Commission's power does not extend to considerations other than those enumerated in the law such as the belief that there
are others more qualified. The law limits the Commission's authority only to whether or not the appointees possess the legal
qualifications and the appropriate civil service eligibility, nothing else. To go beyond this would be to set at naught the
discretionary power of the appointing authority and to give to the Commission a task which the law (Sec. 6, Rep. Act No. 6656)
does not confer. This does not mean that the Commission's act of approving or disapproving becomes ministerial. Far from it.
Section 9 (h) of the Civil Service Law permits the exercise by the Commission of its judgment upon the validity of the
appointment by specifying the criterion for approval of appointments. (Meralco Securities Corp. v. Savellano, 117 SCRA 804
[1982]) The authority given to the Commission, therefore, is very far from a mere mechanical act in which no discretion or
exercise of judgment is allowed.
The Court has defined the parameters within which the power of approval of appointments shall be exercised by the respondent
Commission. In the case of Luego v. Civil Service Commission, 143 SCRA 327 [1986], the Court ruled that all the Commission
is actually authorized to do is to check if the appointee possesses the qualifications and appropriate eligibility: "If he does, his
appointment is approved; if not it is disapproved." We further ruled that the Commission has no authority to revoke an
appointment simply because it believed that the private respondent was better qualified for that would have constituted an
encroachment of the discretion vested solely in the appointing authority. The Commission cannot exceed its power by
substituting its will for that of the appointing authority. (Central Bank v. Civil Service Commission, 171 SCRA 744 [1989]).
The power of appointment exercised after a judicious recommendation made by a placement Committee of the agency
concerned is:
(A)n 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 qualification 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 onlyu the appointing authority can decide.
(Emphasis supplied; Luego v. Civil Service Commission, supra, at p. 332)
The head of an agency who is the appointing power is the one most knowledgeable to decide who can best perform the
functions of the office. (Ocampo v. Subido, 72 SCRA 433 [1976]; Torres v. Borja, 56 SCRA 47 [1974]; Santiago v. Civil Service
Commission, 178 SCRA 733 [1989] He has a wide latitude of choice as to the person to appoint where the law does not impose
rigid conditions. (Reyes v. Abeleda, 22 SCRA 825 [1968]). Section 6, Rep. Act No. 6656 on government reorganization merely
provides that the selection or placement should be done through the creation of a Placement Committee the members of which
are representatives of the head of the agency as well as representatives of the head of the agency as well as representatives of
the employees. The committee's work is recommendatory and does not fix a stringent formula regarding the mode of choosing
from among the candidates. Thus, the respondents' arguments on the alleged inconsistencies and non-conformity with Rep. Act
No. 6656 in rating the contenders are without merit.
In view of the foregoing, the Court is not the least bit convinced by the contentions of the public and private respondents. It is
apparent from the records that the PPA disclosed all the instruments used, the limitations and the adjustments made to the end
that the results would be fair to all the candidates alike. The hiring of an independent psychiatrist-consultant, for instance, proves
the inclination of the committee towards impartiality. More important, the Court emphasizes that the Commission has no
authority to substitute its judgment for that of the Philippine Ports Authority when it comes to evaluating the performance,
personality, and accomplishments of candidates who all have the necessary eligibility and legal qualifications.
WHEREFORE, the petition is hereby GRANTED. The resolutions of the respondent Civil Service Commission dated July 6,
1989, October 17, 1989, and February 14, 1990 are REVERSED and SET ASIDE. Petitioner REYNALDO D. LOPEZ is declared
to be entitled to the office in dispute by virtue of this permanent appointment thereto effective October 1, 1988. The temporary
restraining order issued by the Court on March 22, 1990 is made permanent.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 92561 September 12, 1990
SECRETARY OSCAR ORBOS OF THE DEPARTMENT OF TRANSPORTATION AND COMMUNICATIONS, petitioner,

vs.
CIVIL SERVICE COMMISSION and NERIO MADARANG, respondents.
The Solicitor General for petitioners.
Jose C. Cimano for private respondent.
GANCAYCO, J:
Once again the extent of the authority of the Civil Service Commission (CSC) to pass upon contested appointments is brought
into focus in this petition. The appearance of the Solicitor General on behalf of the petitioner is also questioned.
In the course of the reorganization of the Department of Transportation and Communications (DOTC), Guido C. Agon and
Alfonso Magnayon were appointed to the positions of Head Telecommunications Engineer, range 74.
Nerio Madarang who was also appointed to the position of Supervising Telecommunications Engineer, range 12, questioned the
appointments of Agon and Magnayon by filing an appeal with the Reorganization Appeals Board of the DOTC composed of
Moises S. Tolentino, Jr. of the Office of the Secretary, as Chairman and Assistant Secretary Rosauro V. Sibal and Graciano L.
Sitchon of the Office of the Secretary, as members. In a resolution dated January 9, 1989 the said Reorganization Appeals
Board dismissed Madarang's appeal for lack of merit. Hence, he appealed to the public respondent Civil Service Commission
(CSC)
In its resolution dated August 29, 1989, respondent CSC revoked the appointments of Agon and Magnayon for the contested
positions and directed the appointment of Madarang to the said position of Heads Telecommunications Engineer. 1 DOTC
Assistant Secretary Sibal sought a reconsideration of the said resolution of the CSC but this was denied in a resolution dated
November 2, 1989. 2
On November 21, 1989, Assistant Secretary Sibal filed a manifestation with the CSC stating:
The Telecommunications Office through the undersigned, hereby manifests that we received the CSC
resolution in CSC Case No. 393 on November 12, 1989 and in compliance thereto, we will convene our
Selection and Promotion Board to deliberate on the position of Head Telecommunications Engineer
(reclassified to Engineer IV pursuant to National Compensation Circular No. 58 effective July 1, 1989) with
qualified candidates including appellant Nerio Madarang. 3
In a letter dated November 27, 1989, respondent Madarang requested the CSC to take appropriate action by implementing its
resolutions dated August 29, 1989 and November 2, 1989.
In an order dated December 19, 1989, the CSC directed the immediate implementation of its aforementioned resolution insofar
as it concerned the appointment of Madarang.4
Agon and Magnayon filed their separate motions for reconsideration of the aforestated resolutions of the CSC but these were
denied by the said commission in a resolution dated January 19, 1990.
Hence, this petition for certiorari with prayer for a writ of preliminary injunction or restraining order which was filed by the Solicitor
General in behalf of petitioner. On March 29, 1990, the Court required the respondents to comment on the petition within ten
(10) days from notice and issued a restraining order enjoining the CSC from enforcing its questioned resolutions until further
orders.
The sole issue in this case is whether or not the CSC acted in excess of its jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction when it ordered the appointment of Nerio Madarang to the contested position.
While petitioner does not question the aforestated resolutions of the CSC insofar as it disapproved the appointments of Agon
and Magnayon to the positions of Head Telecommunications Engineer, petitioner maintains that as the appointing authority, he
has the right of choice and discretion to appoint the persons whom he deems fit to the position to be filled. 5 Petitioner
emphasizes that when the CSC denied his motion for reconsideration in a resolution dated November 2, 1989, Assistant
Secretary Sibal informed the CSC through a manifestation that the DOTC Selection and Promotions Board will be convened to
deliberate on the position of Head Telecommunications Engineer, taking into consideration qualified candidates including Nerio
Madarang. Nevertheless, the CSC stood pat on its resolution directing the appointment of Nerio Madarang to the contested
position.
On the other hand, the CSC contends that it was properly exercising a constitutional and legal duty to enforce the merit and
fitness principle in the appointment of civil servants and to uphold their equally guaranteed right to be appointed to similar or
comparable positions in the reorganized agency consistent with applicable law and issuances of competent authorities. 6
Invoking the following provisions of the Constitution:
Section 3 (Article IX [B]). — The Civil Service Commission, 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. It shall strengthen the writ and reward
system, integrate all human resources development programs for all levels and ranks, and institutionalize a
management climate conducive to public accountability. It shall submit to the President and the Congress an
annual report on its personnel programs.' (Emphasis supplied.);
Section 19, Book V of Executive Order No. 292 (The Administrative Code of 1987) which provides:
Section 19. Recruitment and Selection of Employees — (l) Opportunity for government employment shall be
open to all qualified citizens, and positive efforts shall be exerted to attract the best qualified to enter the
service. Employees shall be selected on the basis of the fitness to perform the duties and assume the
responsibilities of the position.;
and Section 12 of the same Executive Order:
Sec. 12. — The Commission shall administer the Civil Service and shall have the following powers and
functions: (a) Administer and enforce the constitutional and statutory provision of the said merit systems...
(Emphasis supplied.)
respondent CSC argues that the primary objective of the CSC system is to promote and establish professionalism by ensuring a
high level of morale among the employees and officers in the career civil service. Pursuant to this constitutional mandate, the
CSC contends it should see to it that the merit system is applied, enforced and implemented in personnel actions involving
appointments affecting all levels and ranks in the civil service at all times. 7
The Court finds the petition to be impressed with merit.
Paragraph H, Section 9 of Presidential Decree No. 807, otherwise known as the 'Civil Service Decree of the Philippines,"
provides:
Section 9. Powers and Function of the Commission. —The Commission shall administer the Civil Service and
shall have the following powers and functions:
xxx xxx xxx
(h) Approve all appointments, whether original or promotional, to positions in the civil service, except those of
presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and
jailguards, and disapprove those where the appointees do not possess the appropriate eligibility or required
qualifications. An appointment shall take effect immediately upon issue by the appointing authority if the
appointee assumes his duties immediately and shall remain effective until it is disapproved by the Commission,
if this should take place, without prejudice to the liability of the appointing authority for appointments issued in
violation of existing laws or rules: Provided, finally, That the Commission shall keep a record of appointments of
all officers and employees in the civil service. All appointments requiring the approval of the Commission as
herein provided, shall be submitted to it by the appointing authority within thirty days from issuance, otherwise
the appointment becomes ineffective thirty days thereafter. (Emphasis supplied)
From the foregoing provision it is clear that the CSC has the power to approve or disapprove an appointment and not the power
to make the appointment itself or to direct that such appointment be made by the appointing authority. The CSC can only inquire
into the eligibility of the person chosen to fill a vacant position and it finds the person qualified it must so attest. The duty of the
CSC is to attest appointments. 8 That function being discharged, its participation in the appointment process ceases. 9
By the same token, should the CSC find that the appointee is not qualified for the position, it has the duty to disapprove the
appointment. Thereafter, the responsibility of appointing the qualified person in lieu of the disqualified appointee rests upon the
discretion of the appointing authority. The CSC cannot encroach upon such discretion vested solely in the appointing authority.
This Court has pronounced in no uncertain terms that the CSC has no authority to revoke an appointment on the ground that
another person is more qualified for a particular position. The Court likewise held that the CSC does not have the authority to
direct the appointment of a substitute of its choice. 10
Petitioner demonstrated his deference to the resolutions of the CSC disapproving the appointments of Agon and Magnayon.
However, in the implementation of said resolutions he decided to convene the DOTC Selection and Promotions Board to
deliberate on the person who should be appointed as Head Telecommunications Engineer among qualified candidates including
respondent Nerio Madarang. Instead of acknowledging the authority of petitioner to exercise its discretion in the appointment of
a replacement, the CSC, in excess of its jurisdiction and with grave abuse of discretion amounting to lack of jurisdiction, directed
the appointment of Madarang as the substitute of its choice. This act of the CSC must be struck down.
Private respondent Madarang, besides his comment, filed a motion to disqualify the Office of the Solicitor General from
appearing for petitioner and to cite petitioner in contempt of court for the filing of the petition.
The Solicitor General is the lawyer of the government, its agencies and instrumentalities, and its officials or agents including
petitioner and public respondent. This is so provided under Presidential Decree No. 478:
SECTION 1. Functions and Organization. — (1) The Office of the Solicitor General shall represent the
Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation,
proceeding, investigation or matter requiring the services of a lawyer. .... (Emphasis supplied.) 10-A
In the discharge of this task the Solicitor General must see to it that the best interest of the government is upheld within the limits
set by law. When confronted with a situation where one government office takes an adverse position against another
government agency, as in this case, the Solicitor General should not refrain from performing his duty as the lawyer of the
government. It is incumbent upon him to present to the court what he considers would legally uphold the best interest of the
government although it may run counter to a client's position. 11 In such an instance the government office adversely affected by
the position taken by the Solicitor General, if it still believes in the merit of its case, may appear in its own behalf through its legal
personnel or representative.
In the present case, it appears that after the Solicitor General studied the issues he found merit in the cause of the petitioner
based on the applicable law and jurisprudence. Thus, it is his duty to represent the petitioner as he did by filing this petition. He
cannot be disqualified from appearing for the petitioner even if in so doing his representation runs against the interests of the
CSC.
This is not the first time that the Office of the Solicitor General has taken a position adverse to his clients like the CSC, the
National Labor Relations Commission, among others, and even the People of the Philippines. In such instances, the Solicitor
General nevertheless manifests his opinion and recommendation to the Court which is an invaluable aid in the disposition of the
case. On some occasions he begs leave to be excused from intervening in the case, more so, when the client had already filed
its own comment different from the stand of the Solicitor General or in a situation when he finds the contention of a private party
tenable as against that of the government or any of its agencies. The Solicitor General has recommended the acquittal of the
accused in appealed criminal cases.
There are cases where a government agency declines the services of the Solicitor General or otherwise fails or refuses to
forward the papers of the case to him for appropriate action. The Court finds and so holds that this practice should be stopped.
To repeat, the Solicitor General is the lawyer of the government, any of its agents and officials in any litigation, proceeding,
investigation or matter requiring the services of a lawyer. The exception is when such officials or agents are being charged
criminally or are being civilly sued for damages arising from a felony. 12 His services cannot be lightly rejected, much less
ignored by the office or officials concerned.
Indeed, the assistance of the Solicitor General should be welcomed by the parties. He should be given full support and
cooperation by any agency or official involved in litigation. He should be enabled to faithfully discharge his duties and
responsibilities as the government advocate. And he should do no less for his clients. His burden of assisting in the fair and just
administration of justice is clear.
This Court does not expect the Solicitor General to waver in the performance of his duty. As a matter of fact, the Court
appreciates the participation of the Solicitor General in many proceedings and his continued fealty to his assigned task. He
should not therefore desist from appearing before this Court even in those cases he finds his opinion inconsistent with the
Government or any of its agents he is expected to represent. The Court must be advised of his position just as well.
Private respondent Madarang also seeks to hold petitioner in contempt of court on the ground that the petition was filed in order
to circumvent or obviate the dismissal of a similar petition in this Court filed by Guido Agon and Alfonso Magnayon. The legal
personality of the petitioner to file the petition is also questioned on the ground it was Assistant Secretary Sibal and not the
petitioner who issued the contested appointments.
The petitioner denies this contention. He asserts that the petition was properly brought in his name as head of the DOTC as
what is in issue is the reorganization of the said department. The petitioner does not dispute the disapproval of the appointments
of Agon and Magnayon; he only disagrees with the order of the CSC directing the appointment of Madarang to the contested
position. The petitioner also alleges that he was not aware of the existence of a separate petition filed in this Court by Agon and
Magnayon.
The Court finds the arguments and assertions of petitioner to be well taken.
It is true that the records of this Court show that there is such a case docketed as G.R. No. 92064 entitled "Guido Agon, et al.,
vs. CSC et al." which is a special civil action for certiorari with a prayer for a writ of preliminary injunction. The petition was
dismissed for late filing in a resolution dated February 27, 1990.
On March 29, 1990 this Court denied with finality the motion for reconsideration filed by the said petitioners there being no
compelling reason to warrant the reversal of the questioned resolution.
Apparently, the disapproval of the appointments of Agon and Magnayon was the issue in said petition. In the present petition as
aforestated, petitioner yields to the disapproval of the appointment of the two, but questions the authority of the CSC to direct the
appointment of Madarang to the contested position.
WHEREFORE, the petition is GRANTED and the questioned resolutions of the respondent CSC dated August 29, 1989,
November 2, 1989 and January 19, 1990 are hereby annulled insofar as they direct the appointment of Nerio Madarang to the
contested position. The petitioner is hereby authorized to convene the DOTC Selection and Promotion Board to determine who
shall replace Guido Agon and Alfonso Magnayon to the contested position by considering all qualified candidates including Nerio
Madarang. The restraining order dated March 29, 1990 is hereby made permanent. No costs.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 111471 September 26, 1994
CITY MAYOR ROGELIO R. DEBULGADO and VICTORIA T. DEBULGADO, petitioners,

vs.
CIVIL SERVICE COMMISSION, respondent.
Marlon P. Ontal for petitioners.
FELICIANO, J.:
Petitioner Rogelio R. Debulgado is the incumbent Mayor of the City of San Carlos, Negros Occidental. On 1 October 1992,
petitioner Mayor appointed his wife, petitioner Victoria T. Debulgado, as General Services Officer, that is, as head of the Office
of General Services 1 of the City Government of San Carlos.
Petitioner Victoria was one of three (3) employees of the City Government who were considered for the position of General
Services Officer. Before her promotion in 1992, she had been in the service of the City Government for about thirty-two (32)
years. She joined the City Government on 3 January 1961 as Assistant License Clerk. Through the years, she rose from the
ranks, successively occupying the following positions:
(a) Assistant Chief of the License & Fees Division, from 1 July 1965 to 30 June 1973;
(b) Chief of the License and Fees Division, from 1 July 1973 to 1 January 1981;
(c) Cashier, from 2 January 1981 to 30 June 1989; and
2
(d) Cashier IV, from 1 July 1989 to 30 September 1992.
On 1 October 1992, petitioner Victoria assumed the new post, and commenced discharging the functions, of General
Services Officer of San Carlos City and receiving the regular salary attached to that position.
On 16 December 1992, public respondent Civil Service Commission ("Commission") received a letter 3 from Congressman
Tranquilino B. Carmona of the First District of Negros Occidental, calling attention to the promotional appointment issued by
petitioner Mayor in favor of his wife.
The Commission directed its Regional Office No. 6-Iloilo City to submit a report on the appointment of petitioner Victoria.
From the report submitted by Director Jesse J. Caberoy of the Iloilo City-CSRO No. 6, the Commission found that petitioner
Mayor was the lawful husband of the appointee, petitioner Victoria, the two (2) having been married sometime in 1964. Director
Caberoy also reported that the appointment papers prepared by the Office of the City Mayor of San Carlos were submitted to the
Bacolod City CSC-Field Office on 28 October 1992, and that the appointment was thereafter approved by Director Purita H.
Escobia of that CSC-Field Office, on 18 November 1992.
Acting on the report of Director Caberoy, the Commission, in its Resolution No. 93-1427 dated 13 April 1993, recalled the
approval issued by Director Escobia and disapproved the promotion of petitioner Victoria to the position of General Services
Officer of San Carlos City upon the ground that that promotion violated the statutory prohibition against nepotic appointments.
On 14 June 1993, petitioner Mayor and petitioner Victoria received a copy of Resolution No. 93-1427 of the
Commission. 4 Petitioners moved for reconsideration, contending that the statutory prohibition against nepotism was not
applicable to the appointment of Victoria as General Services Officer. Petitioners also asserted that the Commission had
deprived petitioner Victoria of her right to due process by unilaterally revoking her appointment. The motion for reconsideration
was denied by the Commission on 21 July 1993.
In this Petition for Certiorari, petitioner Mayor and petitioner Victoria contend that the Commission had gravely abused its
discretion in withdrawing and disapproving petitioner Victoria's promotional appointment. Petitioners assert that Victoria can no
longer be removed from the position of General Services Officer without giving her an opportunity to be heard and to answer the
charged of nepotism.
Petitioner Mayor denies that he had been motivated by personal reasons when he appointed his wife to the new post. He states
that his wife was the most qualified among the candidates for appointment to that position, she having worked for the City
Government for thirty-two (32) years and being highly recommended by the OIC-Treasurer of San Carlos City. 5 It is also
claimed by petitioner Mayor that his choice of his wife for the position was concurred in by the Sangguniang Panglungsod. 6 He
further avers that he had consulted the Field and Regional Officers of the Commission in Bacolod City, and raised the question
of applicability of the prohibition against nepotism to the then proposed promotion of his wife in one of the seminars conducted
by the Commission's Regional Office held in San Carlos City on 21 and 22 September 1992. According to petitioner Mayor, one
Gregorio C. Agdon, a supervising personnel specialist in the Commission's Bacolod Office, informed him that the promotional
appointment was not covered by the prohibition. 7
The basic contention of petitioners is that the prohibition against nepotic appointments is applicable only to original appointments
and not to promotional appointments. They believe that because petitioner Victoria was already in the service of the City
Government before she married petitioner Mayor, the reason behind the prohibition no longer applied to her promotional
appointment. Petitioners also affirm that petitioner Victoria deserves to be promoted to General Services Officer, considering her
long and faithful service to the City Government. 8
The task before this Court is, accordingly, two-fold:
(1) to determine whether a promotional appointment is covered by the legal prohibition against nepotism, or
whether that prohibition applies only to original appointments to the Civil Service; and
(2) to determine whether the Commission had gravely abused its discretion in recalling and disapproving the
promotional appointment given to petitioner Victoria after the Commission, through Director Escobia, had
earlier approved that same appointment, without giving an opportunity to petitioner Victoria to explain her side
on the matter.
The prohibitory norm against nepotism in the public service is set out in Section 59, Book V of the Revised Administrative Code
of 1987 (also known as E.O. No. 292). Section 59 reads as follows:
Sec. 59. Nepotism — (1) All appointments in the national, provincial, city and municipal governments or in any
branch or instrumentality thereof, including government-owned or controlled corporations, made in favor of a
relative of the appointing or recommending authority, or of the chief of the bureau or office, or of the persons
exercising immediate supervision over him, are hereby prohibited.
As used in this Section the word "relative" and members of the family referred to are those related within the
third degree either of consanguinity or of affinity.
(2) The following are exempted from the operation of the rules on nepotism: (a) persons employed in a
confidential capacity, (b) teachers, (c) physicians, and (d) members of the Armed Forces of the Philippines:
Provided, however, That in each particular instance full report of such appointment shall be made to the
Commission.
The restriction mentioned in subsection (1) shall not be applicable to the case of a member of any family who,
after his or her appointment to any position in an office or bureau, contracts marriage with someone in the
same office or bureau, in which event the employment or retention therein of both husband and wife may be
allowed.
(3) In order to give immediate effect to these provisions, cases of previous appointment which are in
contravention hereof shall be corrected by transfer and pending such transfer, no promotion or salary increase
shall be allowed in favor of the relative or relatives who were appointed in violation of these provisions.
(Emphasis supplied).
Section 6 of Rule XVIII, of the "Omnibus Rules Implementing Book V of Executive Order No. 292 and other Pertinent Civil
Service Laws," issued on 27 December 1991, implementing, among other things, the abovequoted Section 59, provides as
follows:
Sec. 6. No appointments in the national, provincial, city and municipal government or in any branch or
instrumentality thereof, including government-owned or controlled corporations with original charters shall be
made in favor of a relative of the appointing or recommending authority, or of the chief of the bureau or office,
or of the persons exercising immediate supervision over the appointee.
Unless otherwise specifically provided by law, as used in this Section, the word "relative" and the members of
the family referred to are those related within the third degree either of consanguinity or of affinity.
The following are exempted from the operation of the rules on nepotism: (a) persons employed in a confidential
capacity; (b) teachers; (c) physicians; (d) members of the Armed Forces of the Philippines. Provided, however,
That in each particular instance full report of such appointment shall be made to the Commission.
The restriction mentioned in the first paragraph of this Section shall not be applicable to the case of a member
of any family who after his or her appointment to any position in an office or bureau, contracts marriage with
someone in the same office or bureau, in which event the employment or retention therein of both husband and
wife may be allowed.
Cases of previous appointment which are in contravention hereof shall be corrected by transfer, and pending
such transfer no promotion or salary increase shall be allowed in favor of the relative or relatives who were
appointed in violation of these provisions. (Emphasis supplied)
It will be noted that the abovequoted Section 6 of Implementing Rule XVIII essentially tracks the provisions of Section
59, Book V of E.O. No. 292. 9
We turn, therefore, to an analysis of Section 59, Book V of E.O. No. 292, quoted above. The noteworthy fact may be pointed out,
at the outset, that Section 59 as it exists today has been in our statute books in substantially identical form and language for at
least thirty (30) years. 10
A textual examination of Section 59 at once reveals that the prohibition was cast in comprehensive and unqualified terms.
Firstly, it explicitly covers "all appointments", without seeking to make any distinction between differing kinds or types of
appointments. Secondly, Section 59 covers all appointments to the national, provincial, city and municipal government, as well
as any branch or instrumentality thereof and all government owned or controlled corporations. Thirdly, there is a list of
exceptions set out in Section 59 itself, but it is a short list:
(a) persons employed in a confidential capacity;

(b) teachers;
(c) physicians; and
(d) members of the Armed Forces of the Philippines.
The list has not been added to or subtracted from for the past thirty (30) years. The list does not contain words like "and
other similar positions." Thus, the list appears to us to be a closed one, at least closed until lengthened or shortened by
Congress.
Section 59 of Book V, E.O. No. 292 should, of course, be read in connection with the Omnibus Implementing Rules. Additional
light is shed on the issue we here address by some provisions of these Rules. Section 1, Rule V of the Omnibus Implementing
Rules reads as follows:
Sec. 1. All appointments in the career service shall be made only according to merit and fitness to be
determined as far as practicable by competitive examinations.
As used in these Rules, any action denoting movement or progress of personnel in the civil service shall be
known as personnel action. Such action shall include promotion, transfer, reinstatement, reemployment, detail,
secondment, reassignment, demotion and separation. All original appointments and personnel actions shall be
in accordance with these Rules and with other regulations and standards that may be promulgated by the
Commission. (Emphasis supplied)
Section 1, Rule VII of the same Rules also bears upon our inquiry:
Sec. 1. The following constitute personnel actions: original appointment, appointment through certification,
promotion, transfer, reinstatement, reemployment, detail, secondment, demotion and separation. (Emphasis
supplied)
Under the abovequoted provisions of the Implementing Rules, both an original appointment and a promotion are particular
species of personnel action. The original appointment of a civil service employee and all subsequent personnel
actions undertaken by or in respect of that employee such as promotion, transfer, reinstatement, reemployment, etc., must
comply with the Implementing Rules including, of course, the prohibition against nepotism in Rule XVIII. To the extent that all
personnel actions occurring after an original appointment, require the issuance of a new appointment to another position (or to
the original position in case of reinstatement), we believe that such appointment must comply with all applicable rules and
prohibitions, including the statutory and regulatory prohibition against nepotism. To limit the thrust of the prohibition against
nepotism to the appointment issued at the time of initial entry into the government service, and to insulate from that prohibition
appointments subsequently issued when personnel actions are thereafter taken in respect of the same employee, would be
basically to render that prohibition, in the words of Laurel V, etc. v. Civil Service Commission, 11 "meaningless and toothless."
Inquiry into the basic purpose or objective of the prohibition against nepotism also strongly indicates that that prohibition was
intended to be a comprehensive one. Section 1, Book V, E.O. No. 292 sets out the basic policy which pervades all the
provisions of our Civil Service law, including Section 59 thereof:
Sec. 1. Declaration of Policy. — The State shall insure and promote the Constitutional mandate that
appointments in the Civil Service shall be made only according to merit and fitness; . . . (Emphasis supplied)
Put succinctly, that purpose is to ensure that all appointments and other personnel actions in the civil service should be
based on merit and fitness and should never depend on how close or intimate an appointee is to the appointing
power. 12
Laurel V, etc. v. Civil Service Commission supra, is instructive in this connection. In that case, petitioner Governor of Batangas
Province appointed or designated his brother, Benjamin Laurel, who had been holding a promotional appointment as Civil
Security Officer, a position classified as "primarily confidential" by the Civil Service, to the position of Provincial Administrator, a
position in the Career Civil Service. This Court held that the appointment or designation as Acting Provincial Administrator was
violative of the prohibition against nepotism, then embodied in Section 49, P.D. No. 807. Moreover, the Court emphatically
agreed with the Civil Service Commission that "although what was extended to Benjamin was merely a designation and not an
appointment, . . . the prohibitive mantle on nepotism would include designation, because what cannot be done directly, cannot
be done indirectly:"
We cannot accept petitioner's view. His specious and tenuous distinction between appointment and
designation is nothing more than either a ploy ingeniously conceived to circumvent the rigid rule on nepotism or
a last-ditch maneuver to cushion the impact of its violation. The rule admits of no distinction between
appointment and designation. Designation is also defined as "an appointment or assignment to a particular
office"; and "to designate" means "to indicate, select, appoint or set apart for a purpose of duty." (Black's Law
Dictionary, Fifth ed., 402)
xxx xxx xxx
It seems clear to Us that Section 49 of P.D. No. 807 does not suggest that designation should be differentiated
from appointment. Reading this section with Section 25 of said decree, career service positions may be filled
up only by appointment, either permanent or temporary; hence a designation of a person to fill it up because it
is vacant, is necessarily included in the term appointment, for it precisely accomplishes the same purpose.
Moreover, if a designation is not to be deemed included in the term appointment under Section 49 of P.D. No.
807, then the prohibition on nepotism would be meaningless and toothless. Any appointing authority may
circumvent it by merely designating, and not appointing, a relative within the prohibited degree to a vacant
position in the career service. Indeed, as correctly stated by public respondent, "what cannot be done directly
cannot be done indirectly." 13 (Emphasis partly in the original and partly supplied; citation omitted)
Thus, the Court was unwilling to restrict and limit the scope of the prohibition which is textually very broad and
comprehensive.
One of the contentions of petitioner in the case at bar is that the ratio of the prohibition against nepotism is not applicable here
because petitioner Victoria was already in the government service at the time petitioners were married in 1964. It is not disputed
that the original 1961 appointment of petitioner Victoria as an Assistant License Clerk was not a nepotic appointment. Indeed,
Section 59 itself states, in the 4th paragraph thereof, that the prohibition against nepotism is not
applicable to the case of a member of any family who, after his or her appointment to any position in any office
or bureau, contracts marriage with someone in the same office or bureau, in which event the employment or
retention therein of both husband and wife may be allowed. (Emphasis supplied)
The subsequent marriage of one to the other of petitioners did not retroactively convert the original appointment of
petitioner Victoria into a prohibited nepotic one. It is the promotional appointment issued by petitioner Mayor to
petitioner Victoria in 1 October 1982 that is at stake.
Here, the basic argument of petitioners is that to read the prohibition in Section 59, Book V of E.O. No. 292 as applicable both to
original and promotional or subsequent appointments, would be to deprive the government of the services of loyal and faithful
employees who would thereby be penalized simply because the appointing or recommending official happens to be related to
the employees within the third degree of consanguinity or affinity.
A major difficulty with the petitioners' argument is that it tends to prove too much. For the appointee, whether in an original or a
promotion appointment, may in fact be quite loyal and efficient and hard-working; yet that circumstance will not prevent the
application of the prohibition certainly in respect of the original appointment. The Court is not unaware of the difficulties that the
comprehensive prohibition against nepotism would impose upon petitioner Victoria and others who maybe in the same position.
It is essential to stress, however, that the prohibition applies quite without regard to the actual merits of the proposed
appointee and to the good intentions of the appointing or recommending authority, and that the prohibition against nepotism in
appointments whether original or promotional, is not intended by the legislative authority to penalize faithful service.
The purpose of Section 59 which shines through the comprehensive and unqualified language in which it was cast and has
remained for decades, is precisely to take out of the discretion of the appointing and recommending authority the matter of
appointing or recommending for appointment a relative. In other words, Section 59 insures the objectivity of the appointing or
recommending official by preventing that objectivity from being in fact tested. The importance of this statutory objective is difficult
to overstress in the culture in which we live and work in the Philippines, where family bonds remain, in general, compelling and
cohesive.
The conclusion we reach is that Section 59, Book V, E.O. No. 292 means exactly what it says in plain and ordinary language: it
refers to "all appointments" whether original or promotional in nature. The public policy embodied in Section 59 is clearly
fundamental in importance, and the Court has neither authority nor inclination to dilute that important public policy by introducing
a qualification here or a distinction there.
It follows that the promotional appointment of petitioner Victoria by her husband, petitioner Mayor, falls within the prohibited
class of appointments: the prohibited relationship between the appointing authority (petitioner Mayor) and the appointee (wife
Victoria) existed at the time the promotional appointment was issued. It is scarcely necessary to add that the reasons which may
have moved petitioner Mayor to issue the prohibited appointment are, as a matter of law, not relevant in this connection. 14
II
We turn to the second issue where petitioners contend that when the promotional appointment of petitioner Victoria was
approved by Director Escobia, CSC Field Office, Bacolod City, that appointment become complete. When petitioner Victoria took
her oath of office and commenced the discharge of the duties of a General Services Officer, she acquired a vested right to that
position and cannot, according to petitioners, be removed from that position without due process of law.
This argument misconceives the nature of the action taken by the respondent Commission. That action was not the imposition of
an administrative disciplinary measure upon petitioner Victoria, nor upon petitioner Mayor. There were no administrative charges
in respect of which petitioner Victoria would have been entitled to notice and hearing. The Commission, in approving or
disapproving an appointment, only examines the conformity of the appointment with applicable provisions of law and whether
the appointee possesses all the minimum qualifications and none of the disqualifications. At all events, as the Solicitor General
has noted, petitioner Victoria was afforded an opportunity to be heard when she filed a motion for reconsideration with the
Commission and there challenged the disapproval by the Commission.
The action of the Commission was, in other words, taken in implementation of Section 59, Book V, E.O. No. 292 and the
relevant Implementing Regulations. Because the promotional appointment in favor of petitioner Victoria was a violation of
Section 59, it was null and void as being contra legem. Section 9 of Rule V of the Omnibus Implementing Regulations sets out
the principal legal consequence of an appointment issued in disregard of the statutory prohibition:
Sec. 9. An appointment accepted by the appointee cannot be withdrawn or revoked by the appointing authority
and shall remain in force and effect until disapproved by the Commission. However, an appointment may be
void from the beginning due to fraud on the part of the appointee or because it was issued in violation of law.
(Emphasis supplied)
A void appointment cannot give rise to security of tenure on the part of the holder of such appointment.
The Commission is empowered to take appropriate action on all appointments and other personnel actions, e.g.,
promotions. 15 Such power includes the authority to recall an appointment initially approved in disregard of applicable provisions
of Civil Service law and regulations. Section 20 of Rule VI of the Omnibus Implementing Rules makes this clear:
Sec. 20. Notwithstanding the initial approval of an appointment, the same may be recalled on any of the
following grounds:
(a) Non-compliance with the procedures/criteria provided in the agency's Merit Promotion Plan;
(b) Failure to pass through the agency's Selection/Promotion Board;
(c) Violation of the existing collective agreement between management and employees relative to promotion; or
(d) Violation of other existing civil service law, rules and regulations. (Emphasis supplied).
The recall or withdrawal by the Commission of the approval which had been issued by one of its Field Officers, Director Escobia,
was accordingly lawful and appropriate, the promotional appointment of petitioner Victoria being void "from the beginning." The
approval issued by Director Escobia did not, as it could not, cure the intrinsic vice of that appointment.
We conclude, in respect of the second issue, that petitioners have not shown any grave abuse of discretion, amounting to lack of
excess of jurisdiction on the part of respondent Commission.
Petitioners have also complained that the letter of Congressman Carmona which had precipitated action on the part of
respondent Commission, was not a verified letter. They contend that the Commission could not or should not have acted upon
the charges raised in that letter.
We are not aware of any law or regulation requiring the letter written by the Congressman to be subscribed under oath before
the Commission could act thereon. Under its own rules and regulations, the Commission may review motu proprio personnel
actions involving the position of a Division Chief or above, such as the position of General Services Officer. 16 We hold that the
respondent Commission had authority, indeed the duty, to recall on its own initiative the erroneous initial approval of the
promotional appointment extended to petitioner Victoria, and to review the same de novo.
WHEREFORE, for all the foregoing, the Petition for Certiorari must be DISMISSED for lack of merit. No pronouncement as to
costs.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 92403 April 22, 1992
VICTOR A. AQUINO, petitioner,

vs.
CIVIL SERVICE COMMISSION and LEONARDA D. DE LA PAZ, respondents.
MEDIALDEA, J.:
This petition for certiorari with prayer for the issuance of a restraining order seeks to nullify the resolutions issued by the
respondent Civil Service Commission, namely: (1) Resolution No. 88-820 dated November 7, 1988 reversing the decision of the
Merit Systems Protection Board dated February 5, 1988 which sustained the decision of the Secretary of Education, Culture and
Sports dated May 4, 1987 upholding the appointment of Mr. Victor A. Aquino as Supply Officer I in the DECS, Division of San
Pablo City; and (2) Resolution No. 90-224 dated February 27, 1990 denying the motion for reconsideration with prayer for
issuance of temporary restraining order for lack of merit.
The antecedent facts are as follows:
Petitioner Victor A. Aquino, then holding the position of Clerk II, Division of City Schools of San Pablo City, was designated on
July 20, 1984 as Officer-in-Charge of the Division Supply Office by the DECS Regional Director Saturnino R. Magturo (Annex
"H", petition, p. 55, Rollo) in view of the retirement of the Supply Officer I, Mr. Jose I. Aviquivil.
Prior to such designation, or from the period February 16, 1984 to June 16, 1984, petitioner was designated as Property
Inspector and In-Charge of the Supply Office performing the duties and responsibilities of the Supply Officer I (p. 55, Rollo).
Two (2) years thereafter, or on September 19, 1986, the Division Superintendent of City Schools of San Pablo City, Milagros
Tagle, issued a promotional appointment to private respondent Leonarda D. de la Paz as Supply Officer I in the DECS Division
of San Pablo City. She assumed and performed the duties and functions of the position and received the compensation and
benefits therefor.
At the time of her appointment, private respondent was then holding the position of Clerk II, Division of City Schools of San
Pablo City. From August 25, 1976 to September 1983, she was designated as Assistant to the Supply Officer (DECS decision,
p. 31, Rollo). The Civil Service Regional Office IV approved her appointment as permanent "provided that there is no pending
administrative case against the appointee, no pending protest against the appointment, nor any decision by competent authority
that will adversely affect the approval of (the) appointment" (Annex "A", Comment of CSC, p 164, Rollo).
One (1) month after, or on October 20, 1986 petitioner filed a protest with the DECS Secretary questioning the qualification and
competence of private respondent for the position of Supply Officer I.
In a decision dated May 4, 1987, DECS Secretary Lourdes R. Quisumbing sustained the protest of petitioner and revoked the
appointment of private respondent as Supply Officer I thus:
From the foregoing comparative statement of the qualifications of Mr. Aquino and Mrs. de la Paz, apparently
the former has a decided advantage over the latter in terms of education, experience and training. Further
examination of the comparative statement shows that Mrs. de la Paz has had no relevant in-service training
course attended and completed. Accordingly, therefore, Mr. Aquino is preferred to Mrs. de la Paz for
appointment as Supply Officer I.
xxx xxx xxx
Based on all the foregoing and as records further show that Mr. Aquino is competent and qualified to hold the
subject position and possesses the eligibility requirement, this Office finds the instant protest meritorious and
hereby rules and so rules that Mr. Aquino be appointed Supply Officer I in place of Mrs. de la Paz, whose
appointment thereto is deemed revoked. (p. Annex "C", pp. 30-31, Rollo)
Private respondent then filed her petition for reconsideration of the aforequoted DECS decision but the same was denied by
Secretary Quisumbing in a Resolution dated August 11, 1967.
On the bases of the aforementioned rulings of the DECS Secretary, petitioner Aquino was issued a permanent appointment
dated August 11, 1987 as Supply Officer I by the DECS Regional Director Pedro San Vicente effective October 26, 1987. On the
date of effectivity of his appointment, petitioner assumed the duties and functions of the position. The said appointment was
approved by the Civil Service Regional Office IV on October 27, 1987.
For her part, private respondent de la Paz filed on October 16, 1987 a notice of appeal with motion to maintain status quo to the
Merit Systems Protection Board (MSPB) which, on February 5, 1988, rendered a decision upholding the appointment of Aquino
as Supply Officer I (Annex "D", petition pp. 33-35, Rollo).
From the decision of the MSPB, private respondent appealed to public respondent Civil Service Commission (CSC).
In Resolution No, 88-820 dated November 7, 1988, public respondent CSC found the appeal of private respondent meritorious,
thus revoking the appointment of petitioner Aquino and restoring private respondent de la Paz to her position as Supply Officer I,
DECS, Division of San Pablo City under her previously approved appointment (Annex "B", petition, pp. 26-29, Rollo).
From said decision, petitioner filed a motion for reconsideration with prayer for issuance of a temporary restraining order. Finding
no merit to the motion for reconsideration filed by petitioner, public respondent CSC issued Resolution No. 90-224 dated
February 27, 1990 denying said motion (Annex "A", petition, pp. 21- 24, Rollo).
Hence, this petition seeking the reversal of public respondent Commission's action on petitioner's appointment.
Two (2) interrelated issues on the extent of authority of the Civil Service Commission to pass upon the contested appointments
were raised by petitioner which could be simplified into whether or not public respondent Civil Service Commission committed
grave abuse of discretion in revoking the appointment of petitioner Victor A. Aquino as Supply Officer I in the DECS Division of
San Pablo City as it found private respondent Leonarda de la Paz better qualified.
In assailing the two (2) CSC Resolutions revoking his appointment, petitioner invokes the ruling of this Court in the case
of Santiago v. Civil Service Commission, G.R. No. 81467, October 27, 1989, 178 SCRA 733 and Galura v. Civil Service
Commission, G.R. 85812, June 1, 1989 (En Banc resolution) that the Civil Service Commission has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position for that would have constituted an
encroachment on the discretion vested solely in the appointing authority. The Civil Service Commission cannot exceed its power
by substituting its will for that of the appointing authority.
In support of petitioner's cause, the Solicitor General stresses the wide latitude of discretion given to the appointing authority in
the selection and appointment of qualified persons to vacant positions in the civil service which was emphasized by the Court as
rationale for the rule laid down in Luego v. Civil Service Commission, G.R. No. 69137, August 5, 1986, 143 SCRA 327, Central
Bank v. CSC, G.R. No. 80455-56, April 10, 1989, 171 SCRA 744, Patagoc v. CSC, G.R. No. 90229, May 14, 1990, 185 SCRA
411, that public respondent CSC, not being the "appointing power" in contemplation of law, has no authority to revoke an
appointment on the ground that another person is more qualified for a particular position and that the Commission has no
authority to direct the appointment of a substitute of its choice.
We have consistently applied the above doctrine in many cases with similar factual circumstances, but we see no compelling
reason to apply the same in the instant case. In the cases cited above, We ruled that the Civil Service Commission has no
authority to revoke an appointment simply because it (CSC) believed that another person is better qualified than the appointee
for it would constitute an encroachment on the discretion solely vested on the appointing authority. The situation is different as in
the instant case, where the Civil Service Commission revoked the appointment of the successful protestant, petitioner herein,
principally because the right to security of tenure of the prior appointee, private respondent herein, to the contested position had
already attached (see CSC decision, pp. 28-29, Rollo). It must be noted that public respondent CSC did not direct the
appointment of a substitute of its choice. It merely restored the appointment of private respondent who was first appointed to the
contested position.
The records show that private respondent was issued a permanent appointment on September 19, 1986 as Supply Officer I in
the DECS Division of San Pablo City effective September 30, 1986. On the basis of the of said appointment which was
approved by the Civil Service Regional Office No. IV, private respondent assumed and performed the duties and functions of the
position as Supply Officer I and received the compensation and benefits of the said position in accordance with the mandate of
Section 9 par.(h) of the Civil Service Law (P.D. 807, as amended). In consonance with the doctrine laid down in Villanueva
v. Balallo, G.R. No. L-17745, October 31, 1963, 9 SCRA 407, that an appointment is complete when the last act required of the
appointing power has been performed, but later qualified in Favis v. Rupisan, G.R. No. L-22823, May 19, 1966, 17 SCRA 190,
that the acts of the head of a department or office making the appointment and the Commissioner of Civil Service acting
together, though not concurrently, but consecutively, are necessary to make an appointment complete, the permanent
appointment extended to private respondent, under the circumstances of the case, is deemed complete. As such, she is entitled
to the protection of the law against unjust removal.
The conclusion of respondent Commission in the questioned decision that private respondent is more qualified than petitioner
merely supports the validity of the restoration of private respondent to her previously approved appointment considering that she
meets the prescribed qualification standards required of the position of Supply Officer I and the appropriate civil service
eligibility, to wit:
EDUCATION: Bachelor's degree with training in Supply Management

EXPERIENCE: None required
ELIGIBILITY: Supply Officer; Career Service (Professional)
It is well-settled that once an appointment is issued and the moment the appointee assumes a position in the civil service under
a completed appointment, he acquires a legal, not merely equitable right (to the position), which is protected not only by statute,
but also by the Constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except
for cause, and with previous notice and hearing (Mitra v. Subido, G.R No. L-21691, September 15, 1967, 21 SCRA 127.
There is also authority for the rule that when the appointing power has once acted and the appointee has accepted the office
and done what is required of him upon its acceptance, his title to the office becomes complete, and he can then be removed
only in the regular way (Mechem, Law of Public Offices and Officers, Sec. 461, p. 294, citing Marbury v. Madison, 1 Cranch
(U.S.) 137). The appointing power can not effect his removal indirectly by rescinding or revoking his appointment after it is
complete.
There is thus reasonable ground for the rule that the moment the discretionary power of appointment has been exercised and
the appointee assumed the duties and functions of the position, the said appointment cannot be revoked by the appointing
authority on the ground merely that the protestant is more qualified than the first appointee, subject however to the condition that
the first appointee should possess the minimum qualifications required by law. Otherwise, the security of tenure guaranteed by
Article IX-B, Section 2 par. (3) of the 1987 Constitution would be rendered meaningless if the appointing authority is allowed to
flip-flop in exercising its discretionary power of appointment.
While a protest is a made of action that may be availed of by the aggrieved party to contest the appointment made, the protest
must be "for cause" or predicated on those grounds provided for under Section 19 par. (6) of the Civil Service Law (P.D. 807),
namely: (1) that the appointee is not qualified; (2) that the appointee is not the next-in-rank; and (3) in case of appointment by
transfer, reinstatement, or by original appointment, that the protestant is not satisfied with the written special reason or reasons
given by the appointing authority.
We have defined the concept of "for cause" in connection with removal of public officers in the case of De los Santos v. Mallare,
G.R. No. L-3881, August 31, 1950, 87 Phil. 289, as follows: "It means for reasons which the law and sound public policy
recognized as sufficient warrant for removal, that is legal cause, and not merely causes which the appointing power in the
exercise of discretion may deem sufficient. It is implied that officers may not be removed at the mere will of those vested with the
power of removal, or without any cause. Moreover, the cause must relate to and affect the administration of the office, and must
be restricted to something of a substantial nature directly affecting the rights and interests of the public."
The ground relied upon by petitioner in his protest that he is more qualified than private respondent in terms of education,
experience and training does not fall within the meaning of "for cause" contemplated by Article IX-B, Section 2 par. (3) of the
1987 Constitution which would warrant the revocation, if not removal, of the appointment of private respondent. Neither does it
fall under the grounds of appeal contemplated under Section 19 par. (6) of the Civil Service Law (P.D. 807). Therefore, the
protest of petitioner did not adversely affect the approval of the appointment of private respondent.
Even on the assumption that the revocation of private respondent's appointment was validly exercised by DECS Secretary
Quisumbing, still the appointment extended to petitioner was tainted with irregularity as it was issued before the finality of the
decision on the protest in violation of CSC Resolution No. 83-343 which prohibits the issuance of an appointment to protestant
(petitioner) if the protest case is not yet finally resolved, since there is no vacancy in the position pending resolution of the
protest case. There can be no appointment to a non-vacant position. The incumbent must first be legally removed or his
appointment validly terminated (Costin v. Quimbo, G.R. No. L-32271, January 27, 1983, 120 SCRA 159). An appointment to an
office which is not vacant is null and void ab initio (Morata v. Court of Appeals, G.R. No. L-18975, May 25, 1964, 11 SCRA 42).
CSC Resolution No. 83-343 provides, thus:
An appointment though contested shall take effect immediately upon issuance if the appointee assumes the
duties of the position and (the) appointee is entitled to receive the salary attached to the position. Likewise such
appointment shall become ineffective in case the protest is finally resolved in favor of the protestant, in which
case the protestee shall be reverted to his former position. (p. 223, Rollo)
Records reveal that the decision of the DECS Secretary revoking the appointment of private respondent was rendered on May
4, 1987 and the motion for reconsideration filed by private respondent was denied on August 11, 1987. The appointment issued
to petitioner as Supply Officer I was dated August 11, 1987 and he assumed the position on October 26, 1987 (date of effectivity
of his appointment) as reported by the Schools Division Superintendent of San Pablo City (pp. 77-78, Rollo). From all
indications, the appointment of petitioner dated August 11, 1987 was issued with undue haste before the finality of the denial of
the motion for reconsideration.
While it is true that the appointing authority has a wide latitude of discretion in making his choice in the selection and
appointment of qualified persons to vacant positions in the civil service, we cannot, however, give a stamp of approval to such a
procedural irregularity in extending appointments, as in the instant case, to the prejudice of the right to security of tenure of the
incumbent to the position.
ACCORDINGLY, the petition is DENIED. The decision dated May 4, 1987 and the resolution dated August 11, 1987 of the
respondent Civil Service Commission are hereby AFFIRMED. The Secretary of the Department of Education, Culture and
Sports is hereby directed to restore private respondent Leonarda de la Paz to her previously approved appointment as Supply
Officer I, DECS, Division of San Pablo City.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 104639 July 14, 1995
PROVINCE OF CAMARINES SUR through its GOVERNOR, SANGGUNIANG PANLALAWIGAN and PROVINCIAL
TREASURER, petitioner,
vs.
COURT OF APPEALS and TITO B. DATO, respondent.
KAPUNAN, J.:
Petitioner Province of Camarines Sur assails the decision of the Court of Appeals which affirmed with modification the Regional
Trial Court of Camarines Sur's decision ordering it to pay private respondent Tito Dato backwages and attorney's fees.
The relevant antecedents are as follows:
On January 1, 1960, private respondent Tito Dato was appointed as Private Agent by the then governor of Camarines Sur,
Apolonio Maleniza.
On October 12, 1972, he was promoted and was appointed Assistant Provincial warden by then Governor Felix Alfelor, Sr.
Because he had no civil service eligibility for the position he was appointed to, private respondent Tito Dato could not be legally
extended a permanent appointment. Hence, what was extended to him was only a temporary appointment. Thereafter, the
temporary appointment was renewed annually.
On January 1, 1974, Governor Alfelor approved the change in Dato's employment status from temporary to permanent upon the
latter's representation that he passed the civil service examination for supervising security guards. Said change of status
however, was not favorably acted upon by the Civil Service Commission (CSC) reasoning that Tito Dato did not possess the
necessary civil service eligibility for the office he was appointed to. His appointment therefore remained temporary.
Thereafter, no other appointment was extended to him.
On March 16, 1976, private respondent Tito Dato was indefinitely suspended by Governor Alfelor after criminal charges were
filed against him and a prison guard for allegedly conniving and/or consenting to evasion of sentence of some detention
prisoners who escaped from confinement.
On March 19, 1976, or two years after the request for change of status was made, Mr. Lope B. Rama, head of the Camarines
Sur Unit of the Civil Service Commission, wrote the Governor of Camarines Sur a letter informing him that the status of private
respondent Tito Dato has been changed from temporary to permanent, the latter having passed the examination for Supervising
Security Guard. The change of status was to be made retroactive to June 11, 1974, the date of release of said examination.
In the meantime, the Sangguniang Panlalawigan, suppressed the appropriation for the position of Assistant Provincial Warden
and deleted private respondent's name from the petitioner's plantilla.
Private respondent Tito Dato was subsequently acquitted of the charges against him. Consequently, he requested the Governor
for reinstatement and backwages.
When his request for reinstatement and backwages was not heeded, private respondent Tito Dato filed an action
for mandamus before the Regional Trial Court of Pili, Camarines Sur, Branch 31.
On May 31, 1991, the trial court 1 rendered judgment, the decretal portion of which reads:
WHEREFORE, judgment is hereby rendered, ordering the respondents:
1) to appropriate and pay the back salaries of the petitioner Tito B. Dato equivalent to five (5) years without
qualification or deduction, at the rate of P14,532.00 per annum, with all the rights and privileges that he is
entitled to as a regular government employee reaching the age of 65 in the government service, as provided by
law;
2) to pay the petitioner the sum of P5,000.00 as attorney's fees; and
3) to pay the costs.
SO ORDERED.2
In due course, petitioner Province of Camarines Sur appealed the said decision to the Court of Appeals.
On February 20, 1992, respondent Court of Appeals rendered its decision which dispositively reads as follows:
WHEREFORE, in view of all the foregoing, judgment appealed from is hereby AFFIRMED with the following
modifications: (1) respondents are ordered to pay the backwages of petitioner Tito B. Dato during the entire
period of his suspension, with all the rights and privileges that he is entitled to as a regular government
employee reaching the age of 65 in the government service, as provided by law; and (2) the award of the sum
of P5,000 to petitioner as attorney's fees and respondents to pay the costs of suit is deleted.
IT IS SO ORDERED.3
Aggrieved by the foregoing ruling, petitioner Province of Camarines Sur interposed the present petition submitting that the
respondent court erred in (a) affirming the trial court's finding that private respondent Tito Dato was its permanent employee at
the time he was suspended on March 16, 1976; and (b) modifying the said decision so as to allow private respondent to claim
backwages for the entire period of his suspension.
The primary question to be resolved in the instant case is whether or not private respondent Tito Dato was a permanent
employee of petitioner Province of Camarines Sur at the time he was suspended on March 16, 1976.
Petitioner contends that when Governor Alfelor recommended to CSC the change in the employment status of private
respondent from temporary to permanent, which the CSC approved as only temporary pending validation of the results of private
respondent's examination for supervising security guard, private respondent's appointment in effect remained temporary. Hence,
his subsequent qualification for civil service eligibility did not ipso facto convert his temporary status to that of permanent.
Private respondent, on his part, vigorously asseverates that the respondent court committed no error in confirming his
appointment as permanent.
We agree with the petitioner.
Private respondent does not dispute the fact that at the time he was appointed Assistant Provincial Warden on January 1, 1974,
he had not yet qualified in an appropriate examination for the aforementioned position. Such lack of a civil service eligibility
made his appointment temporary4 and without a fixed and definite term and is dependent entirely upon the pleasure of the
appointing power.5 The fact that private respondent obtained civil service eligibility later on is of no moment as his having passed
the supervising security guard examination, did not ipso facto convert his temporary appointment into a permanent one.6 In
cases such as the one at bench, what is required is a new appointment since a permanent appointment is not a continuation of
the temporary appointment — these are two distinct acts of the appointing
authority.7
It is worthy to note that private respondent rests his case entirely on the letter dated March 19, 1976 communicated by Mr. Lope
Rama to the Governor of Camarines Sur. The letter, which is self-explanatory, is reproduced in full below:
XXXXXXXXXXXX
CAMARINES SUR UNIT
Naga City
Re: DATO, Tito

— Appointment of
March 19, 1976
The Honorable
The Provincial Governor of Camarines Sur
Naga City.
Sir:
This refers to the latest approved appointment of Mr. TITO DATO as Asst. Provincial Warden, this province, at
P3600, effective January 1, 1974 which was approved by this Office as temporary pending validation of his
Supervising Security Guard eligibility.
It appears, however, that the aforementioned eligibility of Mr. Dato was released on June 11, 1974. In this
connection, attention is being invited to Sec. 19, Rule III of the Rules on Personnel Action and Policies which
provides that "Eligibility resulting from civil service examination . . . shall be effective on the date on the release
of the results of the examination. . . ." (Emphasis supplied.) Mr. Dato's Supervising Security Guard eligibility,
therefore, takes effect June 11, 1974, the date the results thereof was released.
In view thereof, the aforementioned appointment of Mr. Dato is hereby approved anew as follows:
"APPROVED as temporary under Sec. 24 (c), R.A. 2260, as amended, effective January 1, 1974 up to June
10, 1974 and as permanent under Sec. 24 (b), R.A. 2260, as amended, subject to the report on his physical
and medical examination as to insurability, effective June 11, 1974. The Supervising Security Guard eligibility
of Mr. Dato has been validated by the Civil Service Commission, Quezon City.
The records of Mr. Dato in this Office have been amended accordingly.
Very truly yours,
By authority of the
Commission.
(Initialed)
LOPE B. RAMA
Unit Head8
The foregoing is a clear arrogation of power properly belonging to the appointing authority. Time and again, the Court has
defined the parameters within which the power of approval of appointments shall be exercised by the Civil Service Commission.
In Luego v. Civil Service Commission,9 the Court ruled that CSC has the power to approve or disapprove an appointment set
before it. It does not have the power to make the appointment itself or to direct the appointing authority to change the
employment status of an employee. The CSC can only inquire into the eligibility of the person chosen to fill a position and if it
finds the person qualified it must so attest. If not, the appointment must be disapproved. The duty of the CSC is to attest
appointments 10 and after that function is discharged, its participation in the appointment process ceases. 11 In the case at
bench, CSC should have ended its participation in the appointment of private respondent on January 1, 1974 when it confirmed
the temporary status of the latter who lacked the proper civil service eligibility. When it issued the foregoing communication on
March 19, 1976, it stepped on the toes of the appointing authority, thereby encroaching on the discretion vested solely upon the
latter.
Moreover, the Court is not prepared to accord said letter 12 any probative value, the same being merely a purported photocopy
of the alleged letter, initialed and not even signed by the proper officer of the CSC.
Based on the foregoing, private respondent Tito Dato, being merely a temporary employee, is not entitled to the relief he seeks,
including his claim for backwages for the entire period of his suspension.
WHEREFORE, premises considered, the appealed decision is hereby REVERSED and the petition for mandamus instituted by
herein private respondent Tito Dato is hereby DISMISSED.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 93064 June 22, 1992
AGUSTINA G. GAYATAO, petitioner,

vs.
CIVIL SERVICE COMMISSION and BAYANI I. FERNANDEZ, respondents.
REGALADO, J.:p
This special civil action for certiorari impugns the resolution promulgated on October 5, 1989 in CSC Case No. 418 of
respondent Civil Service Commission revoking the appointment of petitioner as Customs Operations Chief of the Export Division
at the Ninoy Aquino International Airport and directing the Commissioner of Customs to appoint private respondent in her stead,
as well as its resolution of April 10, 1990 denying petitioner motion for reconsideration.
Private respondent Bayani I. Fernandez was holding the position of Customs Operations Chief I (COC) in the Bureau of
Customs since March 5, 1984 in a permanent capacity. 1 He was assigned to the aircraft Operations Division. On October 15,
1987, per Customs Personnel Order (CPO) No. C-152-87 issued by Commissioner Salvador M. Mison, he was reassigned as
Acting Chief of the Export Division at the Ninoy Aquino International Airport (NAIA) Customhouse. 2
On February 15, 1988, Commission Mison, purportedly acting pursuant to Executive Order No. 127 implementing the
reorganization of the Department of Finance, Bureau of Customs, appointed petitioner Agustina G Gayatao, then a Supervising
Customs Trade Examiner, to the position of Customs Operations Chief at the NAIA Customhouse, effective March 1,
19883 Thereafter, in CPO No. B-27-88 dated March 3, 1988, petitioner was designated as COC of the Export Division at NAIA,
while private respondent was designated as Customs Operations Assistant Chief (COAC) of the Aircraft Operations Division,
both designations being effective March 1, 1988.4
Aggrieved by the actions of said commissioner, private respondent filed a letter of protest on May 18,1988 before the Merit
System Protection Board of respondent Civil Service Commission (CSC) questioning the appointment of petitioner as COC and
his demotion to the position of COAC. In assailing the action of the appointing authority, private respondent alleged in substance
that (1) he was unjustifiably demoted since he had been holding the contested position prior to the reorganization; and (2) he is
more qualified than herein petitioner.5
Commenting thereon in an undated 4th Indorsement, the Commissioner of Customs alleged that the aforestated appointment of
petitioner is "non-protestable, at having been done pursuant to Executive Order No 127, . . .6
On October 5, 1989, respondent commission promulgated the challenged resolution mentioned at the start of this opinion, with
the following dispositive portion:
WHEREFORE, premises considered, the appointment of appellee Atty. Gayatao as Customs Operations Chief
is hereby revoked. Accordingly, the Commissioner, Bureau of Customs is hereby directed to appoint appellant
Fernandez in her stead.7
On October 30, 1987, petitioner filed a request for reconsideration of the questioned resolution,8 but the same was denied by the
CSC in its resolution dated April 10, 1990.9 Disagreeing with the aforementioned resolutions, petitioner filed the instant petition
for certiorari with prayer for preliminary injunction.
Public respondent CSC filed its comment to the petition on August 27, 1990 10 while private respondent Fernandez did likewise
on August 23, 199011 After some preliminary pleadings and exchanges, on September 25, 1990 the Solicitor General filed a
manifestation in lieu of comment, recommending the grant of the petition and the annulment of the questioned resolutions of
public respondent.
In our resolution of November 6, 1990,12 we required respondent CSC to comment on the manifestation in lieu of comment filed
by the Solicitor General, which it did on October 15, 199113 and subsequently amplified on October 18, 1991 with a
supplemental comment .14
On November 12, 1991, we resolved to give due course to the petition, with the parties filing their respective memoranda, 15 the
last of which was filed by the Solicitor General on February 12, 1992.
The focal issue raised for resolution in this petition is whether respondent commission committed grave abuse of discretion in
revoking the appointment of petitioner and ordering the appointment of private respondent in her place.
Petitioner takes the position that public respondent has no authority to revoke her appointment on the ground that another
person is more qualified, for that would constitute an encroachment on the discretion vested solely in the appointing authority. In
support of said contention, petitioner cites the case of Central Bank of the Philippines, et al. vs. Civil Service Commission, et
al., 16 where we ruled that under the Civil Service Decree (Presidential Decree No. 807), the authority of the CSC is limited to
approving or renewing an appointment in the light of the requisites of the law governing the civil service. The CSC has no
authority to revoke an appointment on the ground that another person is more qualified for a particular position. It will be in
excess of its power if it substitutes its will for that of the appointing authority. The CSC not being the "appointing power" in
contemplation of law, cannot direct the appointment of a substitute of its choice
We have no quarrel with the validity of the aforesaid doctrines but we cannot sustain petitioner's theory and submissions in this
case premised on said doctrinal rules.
The doctrine laid down in he cited case finds no determinant application in the case at bar. A reading of the questioned
resolution of respondent commission readily shows that the revocation of the appointment of petitioner was based primarily on
its finding that the said appointment was null and void by reason of the fact that it resulted in the demotion of private respondent
without lawful cause in violation of the latter's security of tenure. The advertence of the CSC to the fact that private respondent is
better qualified than petitioner was merely to lend further support to its stand that the removal of private respondent was unlawful
and tainted with bad faith and that his reinstatement to his former position is imperative and justified.
We quote the pertinent portion of said resolution:
After a careful perusal of the records of the case, the Commission finds the appeal meritorious, Records will
show that prior to the reorganization, appellant was already holding the position of Customs Operations Chief I
since March 1984. His reappointment to the position of Customs Operation Assistant Chief is therefore a clear
demotion of rank and position. The Commission finds no sufficient justifiable reason for this demotion The
appointing authority cannot entirely disregard the rule on equity of the incumbent and justify demotion in the
guise of reorganization, if such demotion will amount to a penalty without justifiable ground or will result in
deprivation of due process on the part of the employee concerned. Although the appointing authority is afforded
wide latitude in the selection and appointment of employee(s), such exercise is however not absolute. The
Supreme Court in the case of GSIS vs Ayroso (96 SCRA 213), ruled:
While it has been held that the right to select and appoint employees is the prerogative of the
employer, this may be availed of without liability, provided this is exercised, in the words of
Justice Juvenal K. Guerrero, in good faith for the advancement of the employer's interest, and
not for the purpose of defeating or circumventing the rights of the employees under special
laws or under valid agreements, and provided further that such prerogative(s) are not
exercised in a malicious, harsh, oppressive, vindictive or wanton manner, or out of malice or
spite.
Finally, records will further show that appellant is more qualified than appellee because aside from being the
incumbent Customs Operations Chief prior to the reorganization, he was an "Assistant Custom" Operations
Chief since 1977. His experience in the area of Customs Operations are more than sufficient to qualify him for
reappointment to the contested position.17
Clearly, therefore, in the said resolution the CSC is not actually directing the appointment of private respondent but simply
ordering his reinstatement to the contested position being the first appointee thereto. Further, private respondent was already
holding said position when he was unlawfully demoted The CSC, after finding that the demotion was patently illegal, is merely
restoring private respondent to his former position, just as it must restore other employees similarly affected to their positions
before the reorganization.18
It is within the power of public respondent to order the reinstatement of government employees who have been unlawfully
dismissed. The CSC, as the central personnel agency, has the obligation to implement and safeguard the constitutional
provisions on security of tenure and due process. In the present case, the issuance by the CSC of the questioned resolutions,
for the reasons clearly explained therein, is undubitably in the performance of its constitutional task of protecting and
strengthening the civil service.
In the recent case of Aquino vs. Civil Service Commission, et al.,19 wherein similar issues were raised, it was ruled that:
We have consistently applied the above doctrine in many cases with similar factual circumstances, but We see
no compelling reason to apply the same in the instant case. In the cases cited above, We ruled that the CSC
has no authority to revoke an appointment simply because it (CSC) believed that another person is better
qualified than the appointee for it would constitute an encroachment on the discretion solely vested on the
appointing authority. The situation is different, as in the instant case, where the CSC revoked the appointment
of the successful protestant, petitioner herein, principally because the right to security of tenure of the prior
appointee, private respondent herein, to the contested position had already attached. It must be noted that
public respondent CSC did not direct the appointment of a substitute of its choice. It merely restored the
appointment of private respondent who was first appointed to the contested position.
We find no reason to disturb the findings and conclusions of the CSC that respondent Bayani I. Fernandez was illegally
demoted. As earlier noted, private respondent was holding the position of Customs Operations Chief in a permanent capacity
since 1984. His non-reappointment to that position amounts to a removal without cause from an office which has not been
abolished nor reorganized.
As we stressed in Dario vs. Mison, et al., and its companion cases,20 removal from office as a result of reorganization must pass
the test of good faith. Upon the effectivity of the 1987 Constitution, any reorganization undertaken by the Government must be
guided and circumscribed by the safeguards and provisions of the said Constitution and the statutes' governing reorganization. 21
In the instant case, the guidelines and standards provided in those laws were not observed. The position of private respondent
as COC of the Export Division was not abolished with the reorganization of the Bureau of Customs. What happened was that
another person, herein petitioner who is lower in rank, was appointed in his stead. Such fact is a clear indication of bad faith
which would entitle herein private respondent to reinstatement pursuant to Section 9 of Republic Act No. 6656. 22
As a civil service employee with a permanent appointment, Private respondent cannot be removed, suspended or demoted
except for cause" provided by law. Private respondent's appointment to the lower position of COAC is a clear demotion in rank
without no valid cause and without being heard thereon. A demotion in office by assigning an employee to a lower position on
the same service is tantamount to removal, if no cause is shown for it, more so, if it is not part of any disciplinary action.23 The
observance of the rules on bona fide abolition of public office is essential before terminations and/or demotions from
employment in the government service can be made.24
The argument of petitioner that the questioned resolution of respondent CSC will have the effect of her dismissal without cause
from government service, since she is already an appointee to the position which private respondent claims, is devoid of legal
support and logical basis.
In the first place, petitioner cannot claim any right to the contested position. No vacancy having legally been created by the
illegal dismissal no appointment may be validly made to that position and the new appointee has no right whatsoever to that
office. She should be returned to where she came from or to given another equivalent item.25 No person, no matter how qualified
and eligible for a certain position, may he appointed to on office which is not yet vacant. The incumbent must have been lawfully
removed or his appointment validly terminated,26 since an appointment to an office which is not vacant is null and ab initio.27
The present Constitution does not provide for automatic vacancies; removals "not for cause" contemplated in Section 16, Article
XVIII thereof must be those resulting from reorganization and which, to repeat, must pass the test of good faith. 28
We reiterate what we said in the above-cited case of Floreza:
We apply the ruling in Dario vs. Mison and Section 2 of Republic Act 6656 to this position. We hold that Floreza
was deprived of his right to security of tenure by his non-appointment to the position of Revenue Service Chief
or its new title under the reorganized Bureau of Internal Revenue. It should be remembered that after February
2, 1987, any reorganization undertaken by the government is circumscribed by the provisions and safeguards
of the New Constitution. Hence, when Floreza was not reappointed as Revenue Service Chief or as Assistant
Commissioner either in the Legal Service, or in the Planning and Research Service, and other persons were
reappointed to the positions, he was, in effect dismissed from the service in violation not only of his right to
security of tenure but to due process as well.
xxx xxx xxx
Section 2 of Republic Act No. 6655 entitles a victim of removal in violation of the bona fide rule to a
reinstatement or reappointment to the position from which he was removed. The fact that there is now an
appointee to the position he claims, holding an appointment signed by the President, is of no moment, There
was no vacancy in the office to which Jaime M. Masa was appointed and, therefore, his promotion was not
valid.
The argument of the Solicitor General that private respondent's assignment as COC of the Export Division at NAIA was only in
an acting capacity is unavailing. While it is true that an acting appointment is merely temporary and revocable at the pleasure of
the appointing power,29 this temporary appointment cannot be used by the appointing authority as an argument or justification in
order to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law. 30
Although it is true that the appointment of private respondent Fernandez as COC is without any particular or fixed station and,
generally he may be assigned anywhere as the exigencies of the service may require, 31 nonetheless his reassignment as Acting
Chief of the Export Division at NAIA does not make his appointment as Customs Operation Chief I temporary and revocable at
the pleasure of the appointing power. He cannot be arbitrarily removed from a particular division without reassigning him to
another division nor can he be appointed to a lower position without cause and without notice and hearing The appointing power
cannot use the device of an ambiguous designation to go around the security of tenure of a permanent employee.32
On the foregoing consideration, private respondent must be restored to his former position as Chief of the Export Division at
NAIA without prejudice to the power of the Commissioner of Customs to reassign him to any other division as the exigencies of
the service may require, provided this is done in good faith for the best interests of the service or for valid cause.
It is also worthy of note that the order for the reinstatement of private respondent is in consonance with our ruling in Dario vs.
Mison, ante, that there was lack of good faith in the reorganization of the Bureau of Customs. Apropos to the present case is this
trenchant observation therein: "There is no showing that legitimate structural changes have been made — or a reorganization
actually undertaken, for that matter — at the Bureau since Commissioner Mison assumed office, which would have validly
prompted him to hire and fire employees. There can therefore be no actual reorganization to speak of, in the sense, say, of
reduction of personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of functions, but a
revamp of personnel pure and simple."33
WHEREFORE, the petition at bar is DISMISSED and the questioned resolutions of respondent Civil Service Commission are
hereby AFFIRMED.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. NO. L-69137 August 5, 1986
FELIMON LUEGO, petitioner-appellant,

vs.
CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.
Jose Batiquin for petitioner-appellant.
Fausto F. Tugade for private respondent-appellee.
CRUZ, J.:
Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of this case may be
briefly narrated as follows:
The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on
February 18, 1983. 1 The appointment was described as permanent" but the Civil Service Commission approved it as
"temporary," subject to the final action taken in the protest filed by the private respondent and another employee, and provided
"there (was) no pending administrative case against the appointee, no pending protest against the appointment nor any decision
by competent authority that will adversely affect the approval of the appointment." 2 On March 22, 1984, after protracted
hearings the legality of which does not have to be decided here, the Civil Service Commission found the private respondent
better qualified than the petitioner for the contested position and, accordingly, directed "that Felicula Tuozo be appointed to the
position of Administrative Officer 11 in the Administrative Division, Cebu City, in place of Felimon Luego whose appointment as
Administrative Officer II is hereby revoked."3 The private respondent was so appointed on June 28, 1984, by the new mayor,
Mayor Ronald Duterte. 4 The petitioner, invoking his earlier permanent appointment, is now before us to question that order and
the private respondent's title.
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground
that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?
The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the instant case
because his appointment was temporary and therefore could be withdrawn at will, with or without cause. Having accepted such
an appointment, it is argued, the petitioner waived his security of tenure and consequently ran the risk of an abrupt separation
from his office without violation of the Constitution.5
While the principle is correct, and we have applied it many times, 6 it is not correctly applied in this case. The argument begs the
question. The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The
appointing authority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service
Commission to reverse him and call it temporary.
The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly
described as "Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983. 7 What was
temporary was the approval of the appointment, not the appointment it sell And what made the approval temporary was the fact
that it was made to depend on the condition specified therein and on the verification of the qualifications of the appointee to the
position.
The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing
officer, its authority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service
Law. When the appointee is qualified and authorizing the other legal requirements are satisfied, the Commission has no choice
but to attest to the appointment in accordance with the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended lies in the official vested by
law with the appointing power and not the Civil Service Commission. The Commissioner of Civil Service is not
empowered to determine the kind or nature of the appointment extended by the appointing officer. When the
appointee is qualified, as in this case, the Commissioner of Civil Service has no choice but to attest to the
appointment. Under the Civil Service Law, Presidential Decree No. 807, the Commissioner is not authorized to
curtail the discretion of the appointing official on the nature or kind of the appointment to be extended. 8
Indeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee is qualified for the position
to which he has been named. As we have repeatedly held, such attestation is required of the Commissioner of Civil Service
merely as a check to assure compliance with Civil Service Laws.9
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.
It is different where the Constitution or the law subjects the appointment to the approval of another officer or body, like the
Commission on Appointments under 1935 Constitution. 10 Appointments made by the President of the Philippines had to be
confirmed by that body and could not be issued or were invalidated without such confirmation. In fact, confirmation by the
Commission on Appointments was then considered part of the appointing process, which was held complete only after such
confirmation. 11
Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to refuse to concur
with it even if the President's choice possessed all the qualifications prescribed by law. No similar arrangement is provided for in
the Civil Service Decree. On the contrary, the Civil Service Commission is limited only to the non-discretionary authority of
determining whether or not the person appointed meets all the required conditions laid down by the law.
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it
says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the
Commission shag have inter alia the power to:
9(h) Approve all appointments, whether original or promotional to positions in the civil service, except those
presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and
jailguards, and disapprove those where the appointees do not possess appropriate eligibility or required
qualifications. (emphasis supplied)
However, a full reading of the provision, especially of the underscored parts, will make it clear that 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.
Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified
for the position in controversy. 12 That recognition alone rendered it functus officio in the case and prevented it from acting
further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had 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 city mayor.
In preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V, Section 9, of Civil
Service Rules on Personnel Actions and Policies, which provides that "whenever there are two or more employees who are
next-in-rank, preference shall be given to the employee who is most competent and qualified and who has the appropriate civil
service eligibility." This rule is inapplicable, however, because neither of the claimants is next in rank. Moreover, the next-in-rank
rule is not absolute as the Civil Service Decree allows vacancies to be filled by transfer of present employees, reinstatement, re-
employment, or appointment of outsiders who have the appropriate eligibility. 13
There are apparently no political overtones in this case, which looks to be an honest contention between two public functionaries
who each sincerely claims to be entitled to the position in dispute. This is gratifying for politics should never be permitted to
interfere in the apolitical organization of the Civil Service, which is supposed to serve all the people regardless of partisan
considerations. This political detachment will be impaired if the security of tenure clause in the Constitution is emasculated and
appointments in the Civil Service are revoked and changed at will to suit the motivations and even the fancies of whatever party
may be in power.
WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside, and the
petitioner is hereby declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated February
18, 1983. No costs.
SO ORDERED.
SUPREME COURT
Manila
EN BANC
G.R. No. 92673 March 13, 1991
CONRADO C. CORTEZ, petitioner,

vs.
CIVIL SERVICE COMMISSION, BERNARDINO B. TUAZON, respondents.
Dante S. David for petitioner.

Thelma S. Panganiban-Gaminde, Rogelio C. Limare and Dante G. Huerta for Civil Service Commission.
CRUZ, J.:
On April, 1, 1987, petitioner Conrado C. Cortez was appointed by resolution of the board of directors of the Philippine National
Railways to the position of Chief Engine Crew Dispatcher. The appointment was approved as temporary by the respondent Civil
Service Commission effective May 15, 1987. On November 24, 1987, respondent Bernardino B. Tuazon filed a protest with the
Merit Systems Protection Board on the ground that he was better qualified for the position and, as Engine Crew Dispatcher In-
Charge, entitled to preference in promotion under the next-in-rank rule. After considering the said protest and the Comment
thereon filed by the PNR, the Board revoked the petitioner's appointment, holding that he did not possess the minimum
requirements for the position while the protestant did, and that "accordingly, Mr. Tuazon should be appointed to the position of
Chief Engine Crew Dispatcher."1 On appeal, this decision was affirmed by the Civil Service Commission in its resolution dated
September 28, 1989.2
In this petition for certiorari, the public respondent is faulted for holding that Tuazon is better qualified than the petitioner and for
substituting its own discretion for that of the PNR which, as appointing authority, should be allowed to choose its own personnel
"in the paramount interest of the service."
The petitioner submits that he has all the minimum qualifications for the disputed position and is therefore eligible even if it be
supposed that other persons have better qualifications. It is also his contention that the private respondent is not next-in-rank
and that, at any rate, the next-in-rank is not absolute.
Invoking decisions of this Court, the petitioner stresses that as long as the appointee possesses the minimum requirements, the
discretion of the appointing authority in selecting him must be respected by the Civil Service Commission. The Commission
cannot countermand that discretion and direct the appointment of another person who in its own belief is better qualified.
He further contends that even if it be assumed that he did not have the necessary eligibility at the time of his appointment, he
would still qualify as Chief Engine Crew Dispatcher under R.A. No. 6850, Section 1, providing as follows:
Sec. 1. All government employees, as of the approval of this Act who are holding career Civil Service positions
appointed a total of seven (7) years of efficient service may be granted the civil service eligibility that will qualify them for
appointment to their present positions.
Required to submit his Comment, the Solicitor General asked to be excused on the ground that he could "not agree with the
CSC's ruling revoking the appointment of the General Manager of the PNR." The Court therefore resolved, pursuant to the
exception allowed in Orbos vs. Civil Service Commission 3 and on motion of the Solicitor General himself, to give an opportunity
to the Civil Service Commission to file its own Comment.
In defense of the challenged resolution, the Commission points out that all candidates for the vacant post were considered and
properly evaluated, including Cortez and Tuazon. The PNR Promotion and Evaluation Committee ranked Tuazon first with a
total rating of 93.01 points, with Cortez obtaining a total rating of only 85.11 points. Nevertheless, the PNR management
disregarded these ratings and chose Cortez instead of Tuazon.
Comparing the qualifications of the two candidates, the public respondent observes:
Private respondent Bernardino Tuazon is a graduate of Bachelor of Science in Commerce. He held the position of Shop
Apprentice, Fugonero, Third Class Maquinista, Second Class Maquinista, Second Class Train Engineer, First Class
Locomotive Driver and Engine Crew Dispatcher In-Charge. He possesses a Railway Officer eligibility He joined the
service of the PNR in 1949.
On the other hand, petitioner Cortez' highest educational attainment is third year college. He held the position of
General Mechanic, C & W Fitter, STL Mechanic B, Car Foreman, First Class Storekeeper and Assistant Shed Foreman.
He possesses a Railway Assistant eligibility. He joined the service of the PNR in 1962.
The Commission stresses that the petitioner does not question the qualifications of the private respondent. And no less
significantly, Cortez has not shown that he himself possesses even the minimum qualifications, to wit:
EDUCATION: College graduate
EXPERIENCE: At least ten (10) years experience as Assistant Chief Crew Dispatcher; Engine Crew Dispatcher; First
Class Locomotive Driver; and First Class Assistant Locomotive Driver.
ELIGIBILITY: First Grade, Career Service (Professional) on Railway Officer Civil Service eligibility.
The respondents also argue that, as Engine Crew Dispatcher In-Charge, Tuazon is next-in-rank to the position of Chief Engine
Crew Dispatcher. While it is true that the next-in-rank rule is not absolute, it should always be taken into consideration in filling
up vacancies in the Civil Service, for the promotion of the quality and morale of its personnel.
The Court has studied the records of this case and agrees with the respondents that the petitioner does not meet the minimum
qualifications prescribed for the position in question. The civil service eligibility he claims under R.A. 6850 qualifies him for
appointment to his present position only, not for promotion to the another position. Neither does he have the prescribed 10-year
experience nor has he prove that he is a college graduate, as also required.
The petitioner denies that he reached only third year college, insisting that he is a college graduate as found by the PNR. In
support of this claim, he cites Annex "C" of his petition, which merely Comment of the PNR on Tuazon's appeal and does not
mention anything about the petitioner being a college graduate. It does not even make the general statement that he has all the
minimum qualifications.
It is revealing that he cannot offer any evidence more convincing than that equivocal Comment. It would have been a simple
matter for him to present his diploma or a transcript of his academic records or some similar certification to establish his claim
that he is a college graduate. The fact that he has not done so strongly suggest that he really does not posses the claimed
credential and that he falls short of the minimum requirements and for the position he seeks.
The petitioner is ensnared by his own words. In his Reply, he says, "The law only requires that the person appointed must have
the minimum qualification at the time of the appointment." In the same breath, he adds, "While he may be short of the minimum
requirements of eligibility, petitioner submits that he is deemed eligible under R.A. 6850" (which, we repeat, is not applicable).
We agree that many factors are taken into account in evaluating the qualifications of prospective appointees and the formal
examinations, work experience and educational attainment are only some of them. Such abstract criteria as loyalty, cordiality,
initiative, resourcefulness, discipline, and other personality traits are also properly considered. When making this evaluation, the
appointing authority should be given the widest possible leeway and cannot be controlled by the Commission. The Commission
cannot, even for the best of motives, substitute its own discretion for that of the appointing authority in derogation of the latter's
prerogative.4 As we said categorically in Luego vs. Civil Service Commission 5 and have repeated in many other subsequent
cases:
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 qualification required by the 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.
As long as the appointee possesses the minimum qualifications prescribed by law or regulations, there is no question that his
appointment must be respected by the Civil Service Commission even if it be proved that there are others with superior
credentials. However, this rule does not cover those cases where it is found by the Commission, after examining the
appointment papers, that the appointee does not satisfy the minimum qualifications for the position in question. In these cases,
the Commission would be well within its right—and responsibility—in refusing to approve the appointment.
According to Section 9(h) of the Civil Service Decree, the Commission shall have the power to:
9 (h) Approved all appointment, whether original or promotional, to positions in the civil service, except those of
presidential appointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards,
and disapproved those where the appointees do not possess the appropriate eligibility or required qualifications.
(Emphasis supplied)
As it has been shown in the case at bar that the petitioner does not possess the minimum qualifications for the position to be
filled, that was reason enough for the Commission to revoke his appointment pursuant to the Civil Service Degree and the
Constitution. The Commission would have been less than vigilant, and in fact would have been remiss and its constitutional
duty, if it had allowed the appointment to pass.
Let it be stressed that this is not a case where the competing candidates both possess the minimum qualifications and the
Commission substitute its own choice for that of the appointing authority on the ground that the former is better qualified we
have repeatedly ruled that this cannot be done. In the case at bar, the Commission has revoked the petitioners appointment on
the ground that he is not qualified while also finding that Tuazon possesses better qualifications. We affirm the ruling insofar as it
rejects the petitioner's claim to the position for lack of the minimum requirements.
A careful perusal of the challenged resolution shows that it does not direct the appointment of Tuazon but merely concludes that
he should be appointed. We interpret this as a mere suggestion and not a directive. If it was in fact intended as an order
addressed to the PNR, we hereby reversed it as inofficious and unlawful. It bears repeating that the Civil Service Commission
has no right to dictate the exercise by the appointing authority of the discretion conferred upon it by law in the choice of the
appointee.
Interpreting the afore-quoted Section 9(h) in Luego, the Court made the following observations:
However, a full reading of the provision, especially of the under scored parts, will make it clear that 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 Degree says, "approves" or "disapproves"— an
appointment made by the proper authorities.
Significantly, the Commission on Civil Service acknowledged that both the petitioner and private respondent were
qualified for the position in controversy. That recognition alone rendered in functus officio in the case and prevented it
from acting further thereon except to affirm the validity of the petitioners appointment. To be sure, it had no authority to
revoke the said appointment simply because it believe that the private respondent was better qualified for that would
have constituted an encroachment of the discretion vested solely in the city mayor.
Having laid down the above rulings, the Court finds it no longer necessary to determine whether or not the next-in-rank rule is
applicable to the case at bar.
When it disapproves an appointment because the appointee does not possess the minimum qualifications for the position, the
Civil Service Commission is properly performing its constitutional task of protecting and strengthening the Civil Service. As long
as it confines itself to this task and does not encroach on the prerogatives of the appointing authority by controlling its discretion,
the Commission has the full support and encouragement of this Court.
WHEREFORE, the petitioner is DENIED, with costs against the petitioner. It is so ordered.
EN BANC
G. R. No. 159314 June 26, 2006
EDGARDO V. ESTARIJA, Petitioner,

vs.
EDWARD F. RANADA and the Honorable OMBUDSMAN Aniano A. Desierto (now succeeded by Hon. Simeon Marcelo),
and his Deputy OMBUDSMAN for Mindanao, Hon. Antonio E. Valenzuela, Respondents.
DECISION
QUISUMBING, J.:
This petition for review on certiorari assails the February 12, 2003 Decision1 of the Court of Appeals in CA-G.R. SP No. 62557
which affirmed the October 2, 2000 Decision2 of the Office of the Ombudsman-Mindanao in OMB-MIN-ADM-98-183.
The facts are as follows:
On August 10, 1998, respondent Edward F. Ranada, a member of the Davao Pilots Association, Inc. (DPAI) and Davao Tugboat
and Allied Services, Inc., (DTASI) filed an administrative complaint for Gross Misconduct before the Office of the Ombudsman-
Mindanao, against petitioner Captain Edgardo V. Estarija, Harbor Master of the Philippine Ports Authority (PPA), Port of Davao,
Sasa, Davao City.3
The complaint alleged that Estarija, who as Harbor Master issues the necessary berthing permit for all ships that dock in the
Davao Port, had been demanding monies ranging from P200 to P2000 for the approval and issuance of berthing permits,
and P5000 as monthly contribution from the DPAI. The complaint alleged that prior to August 6, 1998, in order to stop the
mulcting and extortion activities of Estarija, the association reported Estarija’s activities to the National Bureau of Investigation
(NBI). On August 6, 1998, the NBI caught Estarija in possession of the P5,000 marked money used by the NBI to entrap
Estarija.
Consequently, the Ombudsman ordered petitioner’s preventive suspension4 and directed him to answer the complaint. The
Ombudsman filed a criminal case docketed as Criminal Case No. 41,464-98, against Estarija for violation of Republic Act No.
3019, The Anti-Graft and Corrupt Practices Act, before the Regional Trial Court of Davao City, Branch No. 8.5
In his counter-affidavit6 and supplemental counter-affidavit,7 petitioner vehemently denied demanding sums of money for the
approval of berthing permits. He claimed that Adrian Cagata, an employee of the DPAI, called to inform him that the DPAI had
payables to the PPA, and although he went to the association’s office, he was hesitant to get the P5,000 from Cagata because
the association had no pending transaction with the PPA. Estarija claimed that Cagata made him believe that the money was a
partial remittance to the PPA of the pilotage fee for July 1998 representing 10% of the monthly gross revenue of their
association. Nonetheless, he received the money but assured Cagata that he would send an official receipt the following day. He
claimed that the entrapment and the subsequent filing of the complaint were part of a conspiracy to exact personal vengeance
against him on account of Ranada’s business losses occasioned by the cancellation of the latter’s sub-agency agreement with
Asia Pacific Chartering Phil., Inc., which was eventually awarded to a shipping agency managed by Estarija’s son.
On August 31, 2000, the Ombudsman rendered a decision8 in the administrative case, finding Estarija guilty of dishonesty and
grave misconduct. The dispositive portion reads:
WHEREFORE, premises considered, there being substantial evidence, respondent EDGARDO V. ESTARIJA is hereby found
guilty of Dishonesty and Grave Misconduct and is hereby DISMISSED from the service with forfeiture of all leave credits and
retirement benefits, pursuant to Section 23(a) and (c) of Rule XIV, Book V, in relation to Section 9 of Rule XIV both of the
Omnibus Rules Implementing Book V of the Administrative Code of 1987 (Executive Order No. 292). He is disqualified from re-
employment in the national and local governments, as well as in any government instrumentality or agency, including
government owned or controlled corporations. This decision is immediately executory after it attains finality. Let a copy of this
decision be entered in the personal records of respondent EDGARDO V. ESTARIJA.
PPA Manager Manuel C. Albarracin is hereby directed to implement this Office Decision after it attains finality.
SO DECREED.9
Estarija seasonably filed a motion for reconsideration.10 Estarija claimed that dismissal was unconstitutional since the
Ombudsman did not have direct and immediate power to remove government officials, whether elective or appointive, who are
not removable by impeachment. He maintains that under the 1987 Constitution, the Ombudsman’s administrative authority is
merely recommendatory, and that Republic Act No. 6770, otherwise known as "The Ombudsman Act of 1989", is
unconstitutional because it gives the Office of the Ombudsman additional powers that are not provided for in the Constitution.
The Ombudsman denied the motion for reconsideration in an Order11 dated October 31, 2000. Thus, Estarija filed a Petition for
Review with urgent prayer for the issuance of a temporary restraining order and writ of preliminary prohibitory injunction before
the Court of Appeals. The Court of Appeals, on February 12, 2003, dismissed the petition and affirmed the Ombudsman’s
decision.
The Court of Appeals held that the attack on the constitutionality of Rep. Act No. 6770 was procedurally and substantially
flawed. First, the constitutionality issue was belatedly raised in the motion for reconsideration of the decision of the Ombudsman.
Second, the petitioner was unable to prove the constitutional breach and failed to overcome the presumption of constitutionality
in favor of the questioned statute.
The Court of Appeals affirmed the decision of the Ombudsman, holding that receiving extortion money constituted dishonesty
and grave misconduct. According to the Court of Appeals, petitioner failed to refute the convincing evidence offered by the
complainant. Petitioner presented affidavits executed by the high-ranking officials of various shipping agencies which were found
by the Court of Appeals to be couched in general and loose terms, and according to the appellate court, could not be given more
evidentiary weight than the sworn testimonies of complainant and other witnesses that were subjected to cross-examination.
Petitioner filed a motion for reconsideration but the Court of Appeals denied the same for lack of merit. Hence, the instant
petition assigning the following errors:
(A) That certain basic factual findings of the Court of Appeals as hereunder specified, are not borne by any
substantial evidence, or are contrary to the evidence on record, or that the Court of Appeals has drawn a
conclusion or inference which is manifestly mistaken or is based on a misappreciation of the facts as to call for
a corrective review by this Honorable Supreme Court;
(B) That Republic Act No. 6770, otherwise known as the "Ombudsman’s Act of 1989", is unconstitutional, or
that the Honorable OMBUDSMAN does not have any constitutional direct and immediate power, authority or
jurisdiction to remove, suspend, demote, fine or censure, herein Petitioner and all other government officials,
elective or appointive, not removable by impeachment, consistent with Sec. 13, par. No. (3), Art XI, of
the 1987 Philippine Constitution.
(C) That corollary to, or consistent with, the aforecited Second Reason, said REPUBLIC ACT No. 6770, as
amended, is constitutionally impaired and invalid insofar as it is inconsistent with, or violative of, the aforecited
constitutional provisions (Sec 13, No. 3, Art XI).
(D) That the issue of "jurisdiction" or constitutionality or validity of a law, statute, rule or regulation can be
raised at any stage of the case, even by way of a motion for reconsideration after a decision has been rendered
by the court or judicial arbiter concerned.
(E) That the DECISION of the Court of Appeals is contrary to jurisprudential law, specifically to the ruling of this
Honorable SUPREME COURT in the case of "Renato A. Tapiador, Petitioner versus Office of the Ombudsman
and Atty. Ronaldo P. Ledesma, Respondents, G.R No. 129124" decided on March 15, 2002.
(F) That assuming arguendo that the Honorable OMBUDSMAN does have such direct constitutional power to
remove, suspend, etc. government officials not removable by impeachment, the DECISION rendered in said
case OMB-MIN-ADM-98-[183], finding Petitioner "guilty of Dishonesty and Grave Misconduct" and directing his
"dismissal from the service, with forfeiture of all leave credits and retirement benefits xxx", is still contrary to
law and the evidence on record, or, at the very least, the charge of "Dishonesty" is not included in RANADA’s
administrative complaint and absolutely no evidence was presented to prove "Dishonesty" and the complaint
which was limited to "[Grave] Misconduct" only;
(G) That further assuming arguendo that Petitioner is subject to direct administrative disciplinary authority by
the Honorable OMBUDSMAN whether under the Constitution or RA 6770, and assuming that he is "guilty" of
"Dishonesty and Grave Misconduct", the Court of Appeals violated Sec. 25 of R.A. 6770 for not considering and
applying, several mitigating circumstances in favor of Petitioner and that the penalty (of dismissal with loss of
benefits) imposed by OMBUDSMAN is violative of Sec. 25, of R.A. 6770 and is too harsh, inhumane, violative of
his human dignity, human rights and his other constitutional right not to be deprived of his property and/or
property rights without due process, is manifestly unproportionate to the offense for which Petitioner is being
penalized, and, should, therefore, be substantially modified or reduced to make it fair, reasonable, just, humane
and proportionate to the offense committed. (Emphasis supplied).12
Essentially, the issues for our resolution are: First, Is there substantial evidence to hold petitioner liable for dishonesty and grave
misconduct? Second, Is the power of the Ombudsman to directly remove, suspend, demote, fine or censure erring officials
unconstitutional?
On the first issue, petitioner claims that the factual findings of the Court of Appeals are not supported by substantial evidence,
and that the Court of Appeals misappreciated the facts of the case.
Petitioner contends that he cannot be liable for grave misconduct as he did not commit extortion. He insists that he was merely
prodded by Adrian Cagata to receive the money. He claims that as a bonded official it was not wrong for him to receive the
money and he had authority to assist the agency in the collection of money due to the agency, e.g. payment for berthing permits.
Moreover, he argues that the signing of berthing permits is only ministerial on his part and he does not have influence on their
approval, which is the function of the berthing committee. Consequently, he avers, it makes no sense why he would extort
money in consideration of the issuance of berthing permits.
We note that indeed petitioner has no hand in the approval of berthing permits. But, it is undisputed that he does decide on the
berthing space to be occupied by the vessels. The berthing committee likewise consults him on technical matters. We note, too,
that he claims he was only instructed to receive the money from Cagata, yet he admits that there was no pending transaction
between the PPA and the DPAI.
In his Comment, the Ombudsman, through the Solicitor General, counters that petitioner raised questions of facts which are not
reviewable by this Court. He argued that contrary to the petitioner’s claim, the judgment of guilt for dishonesty and grave
misconduct was based on the evidence presented. Petitioner was caught red-handed in an entrapment operation by the NBI.
According to the Ombudsman, the entrapment of the petitioner met the test for a valid entrapment i.e. the conduct of the law
enforcement agent was not likely to induce a normally law-abiding person, other than one who is ready and willing to commit the
offense. The presumption in entrapment is that a law abiding person would normally resist the temptation to commit a crime that
is presented by the simple opportunity to act unlawfully. Entrapment is contingent on the accused’s predisposition to commit the
offense charged, his state of mind, and his inclination before his exposure to government agents. Thus, entrapment is not made
ineffectual by the conduct of the entrapping officers. When Estarija went to the office of Adrian Cagata to pick up the money, his
doing so was indicative of his willingness to commit the crime.
In an administrative proceeding, the quantum of proof required for a finding of guilt is only substantial evidence, that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. 13 Further, precedents tell us that
the factual findings of the Office of the Ombudsman when supported by substantial evidence are conclusive, 14 and such findings
made by an administrative body which has acquired expertise are accorded not only respect but even finality.15
As shown on the records, Estarija called the office of the DPAI and demanded the payment of the monthly contribution from
Captain Zamora. Captain Zamora conveyed the demand to Ranada who in turn reported the matter to the NBI. Thereafter, an
entrapment operation was staged. Adrian Cagata called Estarija to confirm the payment, and that the money was already
available at their office. Accordingly, Estarija went to the DPAI office and collected the P5,000 marked money. Upon departure of
Estarija from the office, the NBI operatives frisked him and recovered the P5,000 marked money.
We are unconvinced by Estarija’s explanation of his conduct. He does not deny that he went to the DPAI office to collect the
money and that he actually received the money. Since there was no pending transaction between the PPA and the DPAI, he
had no reason to go to the latter’s office to collect any money. Even if he was authorized to assist in the collection of money due
the agency, he should have issued an official receipt for the transaction, but he did not do so. All told, we are convinced that
there is substantial evidence to hold petitioner liable for grave misconduct.
Misconduct is a transgression of some established and definite rule of action, more particularly, unlawful behavior or gross
negligence by a public officer. And when the elements of corruption, clear intent to violate the law or flagrant disregard of
established rule are manifest, the public officer shall be liable for grave misconduct.16 We are convinced that the decision of the
Ombudsman finding petitioner administratively liable for grave misconduct is based on substantial evidence. When there is
substantial evidence in support of the Ombudsman’s decision, that decision will not be overturned.17
The same findings sustain the conclusion that Estarija is guilty of dishonesty. The term dishonesty implies disposition to lie,
cheat, deceive, or defraud, untrustworthiness, lack of integrity, lack of honesty, probity or integrity in principle, lack of fairness
and straightforwardness, disposition to defraud, deceive or betray.18 Patently, petitioner had been dishonest about accepting
money from DPAI.
Now, the issue pending before us is: Does the Ombudsman have the constitutional power to directly remove from government
service an erring public official?
At the outset, the Court of Appeals held that the constitutional question on the Ombudsman’s power cannot be entertained
because it was not pleaded at the earliest opportunity. The Court of Appeals said that petitioner had every opportunity to raise
the same in his pleadings and during the course of the trial. Instead, it was only after the adverse decision of the Ombudsman
that he was prompted to assail the power of the Ombudsman in his motion for reconsideration. The Court of Appeals held that
the constitutional issue was belatedly raised in the proceedings before the Ombudsman, thus, it cannot be considered on
appeal.
When the issue of unconstitutionality of a legislative act is raised, the Court may exercise its power of judicial review only if the
following requisites are present: (1) an actual and appropriate case and controversy; (2) a personal and substantial interest of
the party raising the constitutional question; (3) the exercise of judicial review is pleaded at the earliest opportunity; and (4) the
constitutional question raised is the very lis mota of the case.19
For our purpose, only the third requisite is in question. Unequivocally, the law requires that the question of constitutionality of a
statute must be raised at the earliest opportunity. In Matibag v. Benipayo,20 we held that the earliest opportunity to raise a
constitutional issue is to raise it in the pleadings before a competent court that can resolve the same, such that, if it was not
raised in the pleadings before a competent court, it cannot be considered at the trial, and, if not considered in the trial, it cannot
be considered on appeal.
In Matibag, President Gloria Macapagal-Arroyo appointed, ad interim, Alfredo L. Benipayo as Chairman of the Commission on
Elections (COMELEC). Ma. J. Angelina G. Matibag was the Director IV of the Education and Information Department (EID) but
Benipayo reassigned her to the Law Department. Matibag sought reconsideration of her relief as Director of the EID and her
reassignment to the Law Department. Benipayo denied her request for reconsideration. Consequently, Matibag appealed the
denial of her request to the COMELEC en banc. In addition, Matibag filed a complaint against Benipayo before the Law
Department for violation of the Civil Service Rules and election laws. During the pendency of her complaint before the Law
Department, Matibag filed a petition before this Court assailing the constitutionality of the ad interim appointment of Benipayo
and the other COMELEC Commissioners. We held that the constitutional issue was raised on time because it was the earliest
opportunity for pleading the constitutional issue before a competent body.
In the case of Umali v. Guingona, Jr.,21 the question of the constitutionality of the creation of the Presidential Commission on
Anti-Graft and Corruption (PCAGC) was raised in the motion for reconsideration after the Regional Trial Court of Makati
rendered a decision. When appealed, the Court did not entertain the constitutional issue because it was not raised in the
pleadings in the trial court. In that case, the Court did not exercise judicial review on the constitutional question because it was
belatedly raised and not properly pleaded, thus, it cannot be considered by the Court on appeal.
In this case, petitioner raised the issue of constitutionality of Rep. Act No. 6770 in his motion for the reconsideration of the
Ombudsman’s decision. Verily, the Ombudsman has no jurisdiction to entertain questions on the constitutionality of a law. Thus,
when petitioner raised the issue of constitutionality of Rep. Act No. 6770 before the Court of Appeals, which is the competent
court, the constitutional question was raised at the earliest opportune time. Furthermore, this Court may determine, in the
exercise of sound discretion, the time when a constitutional issue may be passed upon. 22
In assailing the constitutionality of Rep. Act No. 6770, petitioner contends that the Ombudsman has only the powers enumerated
under Section 13,23 Article XI of the Constitution; and that such powers do not include the power to directly remove, suspend,
demote, fine, or censure a government official. Its power is merely to recommend the action to the officer concerned. Moreover,
petitioner, citing Tapiador v. Office of the Ombudsman,24 insists that although the Constitution provides that the Ombudsman
can promulgate its own rules of procedure and exercise other powers or perform such functions or duties as may be provided by
law,
Sections 15,25 21,26 2227 and 2528 of Rep. Act No. 6770 are inconsistent with Section 13, Article XI of the Constitution because
the power of the Ombudsman is merely to recommend appropriate actions to the officer concerned.
For the State, the Solicitor General maintains that the framers of the 1987 Constitution did not intend to spell out, restrictively,
each act which the Ombudsman may or may not do, since the purpose of the Constitution is to provide simply a framework
within which to build the institution. In addition, the Solicitor General avers that what petitioner invoked was merely an obiter
dictum in the case of Tapiador v. Office of the Ombudsman.
We find petitioner’s contentions without merit. Among the powers of the Ombudsman enumerated in Section 13, Article XI of the
Constitution are:
Section 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
1. Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or
agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.
2. Direct, upon complaint or at its own instance, any public official or employee of the Government, or any subdivision,
agency or instrumentality thereof, as well as of any government owned or controlled corporation with original charter, to
perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the
performance of duties.
3. Direct the Officer concerned to take appropriate action against a public official or employee at fault, and recommend
his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith.
4. Direct the officer concerned, in any appropriate case, and subject to such limitations as may be provided by law, to
furnish it with copies of documents relating to contracts or transactions entered into by his office involving the
disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate
action.
5. Request any government agency for assistance and information necessary in the discharge of its responsibilities, and
to examine, if necessary, pertinent records and documents.
6. Publicize matters covered by its investigation when circumstances so warrant and with due prudence.
7. Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government and make
recommendations for their elimination and the observance of high standards of ethics and efficiency.
8. Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be
provided by law.
Rep. Act No. 6770 provides for the functional and structural organization of the Office of the Ombudsman. In passing Rep. Act
No. 6770, Congress deliberately endowed the Ombudsman with the power to prosecute offenses committed by public officers
and employees to make him a more active and effective agent of the people in ensuring accountability in public
office.29 Moreover, the legislature has vested the Ombudsman with broad powers to enable him to implement his own actions. 30
In Ledesma v. Court of Appeals,31 we held that Rep. Act No. 6770 is consistent with the intent of the framers of the 1987
Constitution. They gave Congress the discretion to give the Ombudsman powers that are not merely persuasive in character.
Thus, in addition to the power of the Ombudsman to prosecute and conduct investigations, the lawmakers intended to provide
the Ombudsman with the power to punish for contempt and preventively suspend any officer under his authority pending an
investigation when the case so warrants. He was likewise given disciplinary authority over all elective and appointive officials of
the government and its subdivisions, instrumentalities and agencies except members of Congress and the Judiciary.
We also held in Ledesma that the statement in Tapiador v. Office of the Ombudsman that made reference to the power of the
Ombudsman is, at best, merely an obiter dictum and cannot be cited as a doctrinal declaration of this Court.32
Lastly, the Constitution gave Congress the discretion to give the Ombudsman other powers and functions. Expounding on this
power of Congress to prescribe other powers, functions, and duties to the Ombudsman, we quote Commissioners Colayco and
Monsod during the interpellation by Commissioner Rodrigo in the Constitutional Commission of 1986 on the debates relative to
the power of the Ombudsman:
MR. RODRIGO: Let us go back to the division between the powers of the Tanodbayan and the Ombudsman which says that:
The Tanodbayan . . . shall continue to function and exercise its powers as provided by law, except those conferred on the office
of the Ombudsman created under this Constitution.
The powers of the Ombudsman are enumerated in Section 12.
MR. COLAYCO: They are not exclusive.
MR. RODRIGO: So, these powers can also be exercised by the Tanodbayan?
MR. COLAYCO: No, I was saying that the powers enumerated here for the Ombudsman are not exclusive.
MR. RODRIGO: Precisely, I am coming to that. The last of the enumerated functions of the Ombudsman is: "to exercise such
powers or perform such functions or duties as may be provided by law." So, the legislature may vest him with powers taken
away from the Tanodbayan, may it not?
MR. COLAYCO: Yes.
MR. MONSOD: Yes.
xxxx
MR. RODRIGO: And precisely, Section 12(6) says that among the functions that can be performed by the Ombudsman are
"such functions or duties as may be provided by law." x x x
MR. COLAYCO: Madam President, that is correct.
MR. MONSOD: Madam President, perhaps it might be helpful if we give the spirit and intendment of the Committee. What we
wanted to avoid is the situation where it deteriorates into a prosecution arm. We wanted to give the idea of the Ombudsman a
chance, with prestige and persuasive powers, and also a chance to really function as a champion of the citizen.
However, we do not want to foreclose the possibility that in the future, the Assembly, as it may see fit, may have to give
additional powers to the Ombudsman; we want to give the concept of a pure Ombudsman a chance under the Constitution.
MR. RODRIGO: Madam President, what I am worried about is, if we create a constitutional body which has neither punitive nor
prosecutory powers but only persuasive powers, we might be raising the hopes of our people too much and then disappoint
them.
MR. MONSOD: I agree with the Commissioner.
MR. RODRIGO: Anyway, since we state that the powers of the Ombudsman can later on be implemented by the legislature, why
not leave this to the legislature?
MR. MONSOD: Yes, because we want to avoid what happened in 1973. I read the committee report which recommended the
approval of the 27 resolutions for the creation of the office of the Ombudsman, but notwithstanding the explicit purpose
enunciated in that report, the implementing law — the last one, P.D. No. 1630 — did not follow the main thrust; instead it created
the Tanodbayan (2 record, 270-271). (emphasis supplied)
xxxx
MR. MONSOD (reacting to statements of Commissioner Blas Ople): May we just state that perhaps the [H]onorable
Commissioner has looked at it in too much of an absolutist position. The Ombudsman is seen as a civil advocate or a champion
of the citizens against the bureaucracy, not against the President. On one hand, we are told he has no teeth and he lacks other
things. On the other hand, there is the interpretation that he is a competitor to the President, as if he is being brought up to the
same level as the President.
With respect to the argument that he is a toothless animal, we would like to say that we are promoting the concept in its form at
the present, but we are also saying that he can exercise such powers and functions as may be provided by law in accordance
with the direction of the thinking of Commissioner Rodrigo. We did not think that at this time we should prescribe this, but we
leave it up to Congress at some future time if it feels that it may need to designate what powers the Ombudsman need in order
that he be more effective. This is not foreclosed.
So, this is a reversible disability, unlike that of a eunuch; it is not an irreversible disability (emphasis supplied). 33
Thus, the Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of the 1987 Constitution, but
allows the Legislature to enact a law that would spell out the powers of the Ombudsman. Through the enactment of Rep. Act No.
6770, specifically Section 15, par. 3, the lawmakers gave the Ombudsman such powers to sanction erring officials and
employees, except members of Congress, and the Judiciary.34 To conclude, we hold that Sections 15, 21, 22 and 25 of Republic
Act No. 6770 are constitutionally sound. The powers of the Ombudsman are not merely recommendatory. His office was given
teeth to render this constitutional body not merely functional but also effective. Thus, we hold that under Republic Act No. 6770
and the 1987 Constitution, the Ombudsman has the constitutional power to directly remove from government service an erring
public official other than a member of Congress and the Judiciary.
WHEREFORE, the petition is DENIED. The assailed Decision dated February 12, 2003 of the Court of Appeals in CA-G.R. SP
No. 62557 and Resolution dated July 28, 2003 are hereby AFFIRMED.
No costs.
SO ORDERED.
SECOND DIVISION
G.R. No. 125296 July 20, 2006
ISMAEL G. KHAN, JR. and WENCESLAO L. MALABANAN, petitioners,

vs.
OFFICE OF THE OMBUDSMAN, DEPUTY OMBUDSMAN (VISAYAS), ROSAURO F. TORRALBA* and CELESTINO
BANDALA**, respondents.
DECISION
CORONA, J.:
This petition for certiorari under Rule 65 of the Rules of Court addresses the issue of whether public respondents Deputy
Ombudsman (Visayas) and the Ombudsman have jurisdiction over petitioners Ismael G. Khan, Jr. and Wenceslao L.
Malabanan, former officers of Philippine Airlines (PAL), for violation of Republic Act No. (RA) 3019 1 (the Anti-Graft and Corrupt
Practices Act).
In February 1989, private respondents Rosauro Torralba and Celestino Bandala charged petitioners before the Deputy
Ombudsman (Visayas) for violation of RA 3019. In their complaint, private respondents accused petitioners of using their
positions in PAL to secure a contract for Synergy Services Corporation, a corporation engaged in hauling and janitorial services
in which they were shareholders.
Petitioners filed an omnibus motion to dismiss the complaint on the following grounds: (1) the Ombudsman had no jurisdiction
over them since PAL was a private entity and (2) they were not public officers, hence, outside the application of RA 3019.
In a resolution dated July 13, 1989,2 the Deputy Ombudsman3 denied petitioners' omnibus motion to dismiss.
On petitioners' first argument, he ruled that, although PAL was originally organized as a private corporation, its controlling stock
was later acquired by the government through the Government Service Insurance System (GSIS).4 Therefore, it became a
government-owned or controlled corporation (GOCC) as enunciated in Quimpo v. Tanodbayan.5
On the second argument, the Deputy Ombudsman held that petitioners were public officers within the definition of RA 3019,
Section 2 (b). Under that provision, public officers included "elective, appointive officials and employees, permanent or
temporary, whether in the classified or unclassified or exempt service receiving compensation, even nominal, from the
Government."
The dispositive portion of the Deputy Ombudsman's order read:
WHEREFORE, finding no merit to [petitioners'] OMNIBUS MOTION TO DISMISS, the same is hereby DENIED and
petitioners are hereby ordered to submit their answer within ten (10) days from receipt hereof. 6
xxx xxx xxx
Petitioners appealed the order to the Ombudsman. There, they raised the same issues. Treating the appeal as a motion for
reconsideration, the Ombudsman dismissed it on February 22, 1996. He held that petitioners were officers of a GOCC, hence,
he had jurisdiction over them.7 He also affirmed the Deputy Ombudsman's ruling that Quimpo was applicable to petitioners'
case.
In this petition for certiorari, with prayer for issuance of a temporary restraining order, petitioners assail the orders dated July 13,
1989 and February 22, 1996 of the Deputy Ombudsman (Visayas) and the Ombudsman, respectively. They claim that public
respondents acted without jurisdiction and/or grave abuse of discretion in proceeding with the investigation of the case against
them although they were officers of a private corporation and not "public officers." 8
In support of their petition, petitioners argue that: (1) the Ombudsman's jurisdiction only covers GOCCs with original
charters and these do not include PAL, a private entity created under the general corporation law; (2) Quimpo does not apply to
the case at bar and (3) RA 3019 only concerns "public officers," thus, they cannot be investigated or prosecuted under that law.
We find merit in petitioners' arguments and hold that public respondents do not have the authority to prosecute them for violation
of RA 3019.
JURISDICTION OF THE OMBUDSMAN OVER GOCCS

IS CONFINED ONLY TO THOSE WITH ORIGINAL
CHARTERS
The 1987 Constitution states the powers and functions of the Office of the Ombudsman. Specifically, Article XI, Section 13(2)
provides:
Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:
xxx xxx xxx

(2) Direct, upon complaint or at its own instance, any public official or employee of the Government, or any
subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporation with
original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any
abuse or impropriety in the performance of duties. (italics supplied)
xxx xxx xxx
Based on the foregoing provision, the Office of the Ombudsman exercises jurisdiction over public officials/ employees of
GOCCs with original charters. This being so, it can only investigate and prosecute acts or omissions of the officials/employees of
government corporations. Therefore, although the government later on acquired the controlling interest in PAL, the fact remains
that the latter did not have an "original charter" and its officers/employees could not be investigated and/or prosecuted by the
Ombudsman.
In Juco v. National Labor Relations Commission,9 we ruled that the phrase "with original charter" means "chartered by special
law as distinguished from corporations organized under the Corporation Code." PAL, being originally a private corporation
seeded by private capital and created under the general corporation law, does not fall within the jurisdictional powers of the
Ombudsman under Article XI, Section 13(2) of the Constitution. Consequently, the latter is devoid of authority to investigate or
prosecute petitioners.
Quimpo Not Applicable

to the Case at Bar
Quimpo10 is not applicable to the case at bar. In that case, Felicito Quimpo charged in 1984 two officers of PETROPHIL in the
Tanodbayan (now Ombudsman) for violation of RA 3019. These officers sought the dismissal of the case on the ground that the
Tanodbayan had no jurisdiction over them as officers/employees of a private company. The Court declared that the Tanodbayan
had jurisdiction over them because PETROPHIL ceased to be a private entity when Philippine National Oil Corporation (PNOC)
acquired its shares.
In hindsight, although Quimpo appears, on first impression, relevant to this case (like PETROPHIL, PAL's shares were also
acquired by the government), closer scrutiny reveals that it is not actually on all fours with the facts here.
In Quimpo, the government acquired PETROPHIL to "perform functions related to government programs and policies on
oil."11 The fact that the purpose in acquiring PETROPHIL was for it to undertake governmental functions related to oil was
decisive in sustaining the Tanodbayan's jurisdiction over it. This was certainly not the case with PAL. The records indicate that
the government acquired the controlling interest in the airline as a result of the conversion into equity of its unpaid loans in GSIS.
No governmental functions at all were involved.
Furthermore, Quimpo was decided prior to the 1987 Constitution. In fact, it was the 1973 Constitution which the Court relied on
in concluding that the Tanodbayan had jurisdiction over PETROPHIL's accused officers. Particularly, the Court cited Article XIII,
Section 6:
SEC. 6. The Batasang Pambansa shall create an office of the Ombudsman, to be known as the Tanodbayan, which
shall receive and investigate complaints relative to public office, including those in government-owned or controlled
corporations, make appropriate recommendations, and in case of failure of justice as defined by law, file and prosecute
the corresponding criminal, civil, or administrative case before the proper court or body. (italics supplied)
The term "government-owned or controlled corporations" in the 1973 Constitution was qualified by the 1987 Constitution to refer
only to those with original charters.12
Petitioners, as then Officers of

PAL, were not Public Officers
Neither the 1987 Constitution nor RA 6670 (The Ombudsman Act of 1989) defines who "public officers" are. Instead, its varied
definitions and concepts are found in different statutes13 and jurisprudence.14 Usually quoted in our decisions is Mechem, a
recognized authority on the subject. In the 2002 case of Laurel v. Desierto,15 the Court extensively quoted his exposition on the
term "public officers":
A public office is the right, authority and duty, created and conferred by law, by which, for a given period, either fixed by
law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the benefit of the public. The individual so invested is a public
officer.
The characteristics of a public office, according to Mechem, include the delegation of sovereign functions, its creation by
law and not by contract, an oath, salary, continuance of the position, scope of duties, and the designation of the position
as an office.
xxx xxx xxx
Mechem describes the delegation to the individual of the sovereign functions of government as "[t]he most important
characteristic" in determining whether a position is a public office or not.
The most important characteristic which distinguishes an office from an employment or contract is that the creation and
conferring of an office involves a delegation to the individual of some of the sovereign functions of government to be
exercised by him for the benefit of the public; − that some portion of the sovereignty of the country, either legislative,
executive, or judicial, attaches, for the time being, to be exercised for the public benefit. Unless the powers conferred
are of this nature, the individual is not a public officer.16 (italics supplied)
From the foregoing, it can be reasonably inferred that "public officers" are those endowed with the exercise of sovereign
executive, legislative or judicial functions.17 The explication of the term is also consistent with the Court's pronouncement
in Quimpo that, in the case of officers/employees in GOCCs, they are deemed "public officers" if their corporations are tasked to
carry out governmental functions.
In any event, PAL has since reverted to private ownership and we find it pointless to scrutinize the implications of a legal issue
that technically no longer exists.
WHEREFORE, the petition is hereby GRANTED. Public respondents Deputy Ombudsman (Visayas) and Office of the
Ombudsman are restrained from proceeding with the investigation or prosecution of the complaint against petitioners for
violation of RA 3019. Accordingly, their assailed orders of July 13, 1989 and February 22, 1996, respectively, are SET
ASIDE and ANNULLED.
SO ORDERED.

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Republic of the Philippines

G.R. No. L-55151 March 17, 1981

Succintly stated, the pertinent facts follow:

Section 21 of Presidential Decree No. 269 (second paragraph) provides:

Section 3, Article IV of the By-laws of MOELCI II also explicitly states:

xxx xxx xxx

xxx xxx xxx

G.R. No. 85279 July 28, 1989

Vicente T. Ocampo & Associates for petitioners.

The antecedents are as follows:

1. Do the employees of the SSS have the right to strike?

These shall be discussed and resolved seriatim

A.M. No. P-88-269 December 29, 1995

OSCAR ABETO, complainant,

DAVIDE, JR., J.:

She then recommends:

G.R. No. L-46930 June 10, 1988

DALE SANDERS, AND A.S. MOREAU, JR, petitioners,

G.R. No. L-47346 April 8, 1941

FRANCISCO B. REYES, appellant,

Consolador Reyes Palad and Horacio M. Abdon for appellant.

G.R. No. 79253 March 1, 1993

UNITED STATES OF AMERICA and MAXINE BRADFORD, petitioners,

Luna, Sison & Manas for petitioners.

Evelyn R. Dominguez for private respondent.

DAVIDE, JR., J.:

The doctrine of state immunity is at the core of this controversy.

The readings disclose the following material operative facts:

xxx xxx xxx

On 19 August 1987, petitioners filed with the trial court a Motion

xxx xxx xxx

(c) an action relating to any professional or commercial activity exercised by

Costs against petitioner Bradford.

G.R. No. 123045 November 16, 1999

DEMETRIO R. TECSON, petitioner,

Hence, this instant petition. Petitioner contends that:

THE RESPONDENT COURT/SANDIGANBAYAN (1ST DIVISION) GRAVELY ABUSED ITS DISCRETION,

A- IN RULING UNREASONABLY THAT THE GUILT OF THE ACCUSED

B- IN PROCEEDING WITH THE TRIAL AND CONVICTION DESPITE THE

C- IN IGNORING THE DOCTRINE OF RES JUDICATA AND THE

Otherwise stated, the issues are:

The issues shall be discussed in seriatim.

Art. III, Section 21 of the Constitution provides:

Sec. 3 of R.A. No. 3019 states:

xxx xxx xxx

The crime charged has four elements, namely:

(1) The accused is a public officer;

A.M. No. MTJ-981147 July 2, 1998

JESUS S. CONDUCTO, complainant,

JUDGE ILUMINADO C. MONZON, respondent.

DAVIDE, JR., J.:

The factual antecedents recited in the letter-complaint are not controverted.

Then again, on 30 May 1974, in Oliveros v. Villaluz, 21 this Court held:

Finally, on 21 August 1992, in Aguinaldo v. Santos, 22 this Court stated:

Likewise, in Luzon Stevedoring Corp. v. Court of Appeals: 26

G.R. No. 97149 March 31, 1992

FIDENCIO Y. BEJA, SR., petitioner,

WHEREFORE, judgment is hereby rendered, adjudging the following, namely:

b) That respondent Fidencio Y. Beja be dismissed from the service;

d) That he be disqualified from re-employment in the government service;

e) That his eligibility is recommended to be cancelled.

Pasig, Metro Manila, February 28, 1989.

xxx xxx xxx