Publicofficers Cases

[G.R. No. 116033. February 26, 1997.
ALFREDO L. AZARCON, Petitioner, v. SANDIGANBAYAN, PEOPLE OF THE

PHILIPPINES and JOSE C. BATAUSA, Respondents.
Ongkiko Kalaw Manhit Acorda Panga & Velasco Law Offices.
The Solicitor General for Respondents.
SYLLABUS
1. REMEDIAL LAW; JURISDICTION; CANNOT BE PRESUMED OR IMPLIED. — It is

hornbook doctrine that in order (to) ascertain whether a court has jurisdiction or not,
the provisions of the law should be inquired into." Furthermore, "the jurisdiction of the
court must appear clearly from the statute law or it will not be held to exist. It cannot
be presumed or implied. And for this purpose in criminal cases, "the jurisdiction of a
court is determined by the law at the time of commencement of the action." cralaw virtua1aw library
2. ID.; ID.; SANDIGANBAYAN; SEC. 4, P.D. NO. 1606 SPECIFY THE ONLY INSTANCES
WHEN THE SANDIGANBAYAN WILL HAVE JURISDICTION OVER PRIVATE INDIVIDUAL.
— The provisions of Sec. 4 of P.D. No. 1606 unequivocally specify the only instances
when the Sandiganbayan will have jurisdiction over a private individual, i.e. when the
complaint charges the private individual either as a co-principal, accomplice or
accessory of a public officer or employee who has been charged with a crime within its
jurisdiction.
3. CRIMINAL LAW; PUBLIC OFFICER, DEFINED. — Article 203 of the Revised Penal Code
determines who are public officers: "Who are public officers. — For the purpose of
applying the provisions of this and the preceding titles of the book, any person who, by
direct provision of the law, popular election, or appointment by competent authority,
shall take part in the performance of public functions in the Government of the
Philippine Islands, or shall perform in said Government or in any of its branches public
duties as an employee, agent, or subordinate official, of any rank or classes, shall be
deemed to be a public officer." Thus," (to) be a public officer, one must be — (1) Taking
part in the performance of public functions in the government, or Performing in said
Government or any of its branches public duties as an employee, agent, or subordinate
official, of any rank or class; and (2) That his authority to take part in the performance
of public functions or to perform public duties must be — a. by direct provision of the
law, or b. by popular election, or c. by appointment by competent authority." cralaw virtua1aw library
4. CONSTITUTIONAL LAW; DELEGATED POWERS; ADMINISTRATIVE AGENCIES MAY

EXERCISE ONLY THOSE PROVIDED BY ITS ENABLING ACT. — It is axiomatic in our
constitutional framework, which mandates a limited government, that its branches and
administrative agencies exercise only that power delegated to them as "defined either
in the Constitution or in legislation or in both." Thus, although the "appointing power is
the exclusive prerogative of the President, . . ." the quantum of powers possessed by
an administrative agency forming part of the executive branch will still be limited to
that "conferred expressly or by necessary or fair implication" in its enabling act.
Hence," (a)n administrative officer, it has been held, has only such powers as are
expressly granted to him and those necessarily implied in the exercise thereof."
Corollarily, implied powers "are those which are necessarily included in, and are
therefore of lesser degree than the power granted. It cannot extend to other matters
not embraced therein, nor are not incidental thereto." For to so extend the statutory
grant of power "would be an encroachment on powers expressly lodged in Congress by
our Constitution."cralaw virtua1aw library
5. ID.; ID.; ID.; NATIONAL INTERNAL REVENUE CODE; DOES NOT STRETCH THE BIR’S
POWER AUTHORIZING A PRIVATE INDIVIDUAL TO ACT AS A DEPOSITARY AS TO
INCLUDE THE POWER TO APPOINT HIM AS PUBLIC OFFICER. — It is true that Sec. 206
of the NIRC, as pointed out by the prosecution, authorizes the BIR to effect a
constructive distraint by requiring "any person" to preserve a distrained property, thus:
". . . The constructive distraint of personal property shall be effected by requiring the
taxpayer or any person having possession or control of such property to sign a receipt
covering the property distrained and obligate himself to preserve the same intact and
unaltered and not to dispose of the same in any manner whatever without the express
authority of the Commissioner. . . However, we find no provision in the NIRC
constituting such person a public officer by reason of such requirement. The BIR’s
power authorizing a private individual to act as a DEPOSITARY cannot be stretched to
include the power to appoint him as a public officer.
6. STATUTORY CONSTRUCTION; LEGISLATIVE INTENT; DETERMINED PRINCIPALLY

FROM THE LANGUAGE OF THE STATUTE; APPLICATION IN CASE AT BAR. — Legislative
intent is determined principally from the language of a statute. Where the language of a
statute is clear and unambiguous, the law is applied according to its express terms, and
interpretation would be resorted to only where a literal interpretation would be either
impossible or absurd or would lead to an injustice. This is particularly observed in the
interpretation of penal statutes which "must be construed with such strictness as to
carefully safeguard the rights of the defendant . . ." The language of the foregoing
provision is clear. A private individual who has in his charge any of the public funds or
property enumerated therein and commits any of the acts defined in any of the
provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized with
the same penalty meted to erring public officers. Nowhere in this provision is it
expressed or implied that a private individual falling under said Article 222 is to be
deemed a public officer.
DECISION
PANGANIBAN, J.:
Does the Sandiganbayan have jurisdiction over a private individual who is charged with
malversation of public funds as a principal after the said individual had been designated
by the Bureau of Internal Revenue as a custodian of distrained property? Did such
accused become a public officer and therefore subject to the graft court’s jurisdiction as
a consequence of such designation by the BIR?
These are the main questions in the instant petition for review of Respondent
Sandiganbayan’s Decision 1 in Criminal Case No. 14260 promulgated on March 8, 1994,
convicting petitioner of malversation of public funds and property, and Resolution 2
dated June 20, 1994, denying his motion for new trial or reconsideration thereof.
The Facts
Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling "dirt
and ore." 3 His services were contracted by the Paper Industries Corporation of the
Philippines (PICOP) at its concession in Mangagoy, Surigao del Sur. Occasionally, he
engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the
former’s premises. 4 From this set of circumstances arose the present controversy.
". . . It appears that on May 25, 1983, a Warrant of Distraint of Personal Property was
issued by the Main office of the Bureau of Internal Revenue (BIR) addressed to the
Regional Director (Jose Batausa) or his authorized representative of Revenue Region
10, Butuan City commanding the latter to distraint the goods, chattels or effects and
other personal property of Jaime Ancla, a sub-contractor of accused Azarcon and, a
delinquent taxpayer. The Warrant of Garnishment was issued to accused Alfredo
Azarcon ordering him to transfer, surrender, transmit and/or remit to BIR the property
in his possession owned by taxpayer Ancla. The Warrant of Garnishment was received
by accused Azarcon on June 17, 1985." 5
Petitioner Azarcon, in signing the "Receipt for Goods, Articles, and Things Seized Under
Authority of the National Internal Revenue," assumed the undertakings specified in the
receipt the contents of which are reproduced as follows: jgc:chanrobles.com.ph
"(I), the undersigned, hereby acknowledge to have received from Amadeo V. San
Diego, an Internal Revenue Officer, Bureau of Internal Revenue of the Philippines, the
following described goods, articles, and things:chanrob1es virtual 1aw library
Kind of property — Isuzu dump truck
Motor number — E120-229598
Chassis No. — SPZU50-1772440
Number of CXL — 6
Color — Blue
Owned By — Mr. Jaime Ancla
the same having been this day seized and left in (my) possession pending investigation
by the Commissioner of Internal Revenue or his duly authorized representative. (I)
further promise that (I) will faithfully keep, preserve, and, to the best of (my) ability,
protect said goods, articles, and things seized from defacement, demarcation, leakage,
loss, or destruction in any manner; that (I) will neither alter nor remove, nor permit
others to alter or remove or dispose of the same in any manner without the express
authority of the Commissioner of Internal Revenue; and that (I) will produce and
deliver all of said goods, articles, and things upon the order of any court of the
Philippines, or upon demand of the Commissioner of Internal Revenue or any
authorized officer or agent of the Bureau of Internal Revenue." 6
Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIR’s
Regional Director for Revenue Region 10 B, Butuan City stating that
". . . while I have made representations to retain possession of the property and signed
a receipt of the same, it appears now that Mr. Jaime Ancla intends to cease his
operations with us. This is evidenced by the fact that sometime in August, 1985 he
surreptitiously withdrew his equipment from my custody. . . In this connection, may I
therefore formally inform you that it is my desire to immediately relinquish whatever
responsibilities I have over the above-mentioned property by virtue of the receipt I
have signed. This cancellation shall take effect immediately. . ." 7
Incidentally, the petitioner reported the taking of the truck to the security manager of
PICOP, Mr. Delfin Panelo, and requested him to prevent this truck from being taken out
of the PICOP concession. By the time the order to bar the truck’s exit was given,
however, it was too late. 8
Regional Director Batausa responded in a letter dated May 27, 1986, to wit: jgc:chanrobles.com.ph
"An analysis of the documents executed by you reveals that while you are (sic) in
possession of the dump truck owned by JAIME ANCLA, you voluntarily assumed the
liabilities of safekeeping and preserving the unit in behalf of the Bureau of Internal
Revenue. This is clearly indicated in the provisions of the Warrant of Garnishment which
you have signed, obliged and committed to surrender and transfer to this office. Your
failure therefore, to observe said provisions does not relieve you of your responsibility."
9
Thereafter, the Sandiganbayan found that
"On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue
Region 10 B, Butuan City, sent a progress report to the Chief of the Collection Branch of
the surreptitious taking of the dump truck and that Ancla was renting out the truck to a
certain contractor by the name of Oscar Cueva at PICOP (Paper Industries Corporation
of the Philippines, the same company which engaged petitioner’s earth moving
services), Mangagoy, Surigao del Sur. She also suggested that if the report were true, a
warrant of garnishment be reissued against Mr. Cueva for whatever amount of rental is
due from Ancla until such time as the latter’s tax liabilities shall be deemed satisfied. . .
However, instead of doing so, Director Batausa filed a letter-complaint against the
(herein Petitioner) and Ancla on 22 January 1988, or after more than one year had
elapsed from the time of Mrs. Calo’s report." 10
Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint . . . to

the office of the Tanodbayan" on May 18, 1988. He was deputized Tanodbayan
prosecutor and granted authority to conduct preliminary investigation on August 22,
1988, in a letter by Special Prosecutor Raul Gonzales approved by Ombudsman
(Tanodbayan) Conrado Vasquez. 11
Along with his co-accused Jaime Ancla, Petitioner Azarcon was charged before the
Sandiganbayan with the crime of malversation of public funds or property under Article
217 in relation to Article 222 of the Revised Penal Code (RPC) in the following
Information 12 filed on January 12, 1990, by Special Prosecution Officer Victor
Pascual:jgc:chanrobles.com.ph
"That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del
Sur, Philippines, and within the jurisdiction of this Honorable Court, Accused Alfredo L.
Azarcon, a private individual but who, in his capacity as depository/administrator of
property seized or deposited by the Bureau of Internal Revenue, having voluntarily
offered himself to act as custodian of one Isuzu Dumptruck (sic) with Motor No. E120-
22958, Chassis No. SPZU 50-1772440, and number CXL-6 and was authorized to be
such under the authority of the Bureau of Internal Revenue, has become a responsible
and accountable officer and said motor vehicle having been seized from Jaime C. Ancla
in satisfaction of his tax liability in the total sum of EIGHTY THOUSAND EIGHT
HUNDRED THIRTY ONE PESOS and 59/100 (P80,831.59) became a public property and
the value thereof as public fund, with grave abuse of confidence and conspiring and
confederating with said Jaime C. Ancla, likewise, a private individual, did then and there
willfully, (sic) unlawfully and feloniously misappropriate, misapply and convert to his
personal use and benefit the aforementioned motor vehicle or the value thereof in the
aforestated amount, by then and there allowing accused Jaime C. Ancla to remove,
retrieve, withdraw and tow away the said Isuzu Dumptruck (sic) with the authority,
consent and knowledge of the Bureau of Internal Revenue, Butuan City, to the damage
and prejudice of the government in the amount of P80,831.59 in a form of unsatisfied
tax liability.
CONTRARY TO LAW." cralaw virtua1aw library
The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14,
1991, alleging that: (1) the petitioner never appeared in the preliminary investigation;
and (2) the petitioner was not a public officer, hence a doubt exists as to why he was
being charged with malversation under Article 217 of the Revised Penal Code. 13 The
Sandiganbayan granted the motion for reinvestigation on May 22, 1991. 14 After the
reinvestigation, Special Prosecution Officer Roger Berbano, Sr., recommended the
"withdrawal of the information" 15 but was "overruled by the Ombudsman." 16
A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the
Sandiganbayan did not have jurisdiction over the person of the petitioner since he was
not a public officer. 17 on May 18, 1992, the Sandiganbayan denied the motion. 18
When the prosecution finished presenting its evidence, the petitioner then filed a
motion for leave to file demurrer to evidence which was denied on November 16, 1992,
"for being without merit." 19 The petitioner then commenced and finished presenting
his evidence on February 15, 1993.
The Respondent Court’s Decision
On March 8, 1994, Respondent Sandiganbayan 20 rendered a Decision, 21 the

dispositive portion of which reads: jgc:chanrobles.com.ph
"WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond
reasonable doubt as principal of Malversation of Public Funds defined and penalized
under Article 217 in relation to Article 222 of the Revised Penal Code and, applying the
Indeterminate Sentence Law, and in view of the mitigating circumstance of voluntary
surrender, the Court hereby sentences the accused to suffer the penalty of
imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor in its
maximum period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of
Reclusion Temporal. To indemnify the Bureau of Internal Revenue the amount of
P80,831.59; to pay a fine in the same amount without subsidiary imprisonment in case
of insolvency; to suffer special perpetual disqualification; and, to pay the costs. cralawnad
Considering that accused Jaime Ancla has not yet been brought within the jurisdiction
of this Court up to this date, let this case be archived as against him without prejudice
to its revival in the event of his arrest or voluntary submission to the jurisdiction of this
Court.
SO ORDERED." cralaw virtua1aw library
Petitioner, through new counsel, 22 filed a motion for new trial or reconsideration on
March 23, 1994, which was denied by the Sandiganbayan in its Resolution 23 dated
December 2, 1994.
Hence, this petition.
The Issues
The petitioner submits the following reasons for the reversal of the Sandiganbayan’s
assailed Decision and Resolution: jgc:chanrobles.com.ph
"I. The Sandiganbayan does not have jurisdiction over crimes committed solely by
private individuals.
II. In any event, even assuming arguendo that the appointment of a private individual
as a custodian or a depositary of distrained property is sufficient to convert such
individual into a public officer, the petitioner cannot still be considered a public officer
because: chanrob1es virtual 1aw library
[A]
There is no provision in the National Internal Revenue Code which authorizes the
Bureau of Internal Revenue to constitute private individuals as depositaries of
distrained properties.
[B]
His appointment as a depositary was not by virtue of a direct provision of law, or by

election or by appointment by a competent authority.
III. No proof was presented during trial to prove that the distrained vehicle was actually
owned by the accused Jaime Ancla; consequently, the government’s right to the subject
property has not been established.
IV. The procedure provided for in the National Internal Revenue Code concerning the
disposition of distrained property was not followed by the B.I.R., hence the distraint of
personal property belonging to Jaime C. Ancla and found allegedly to be in the
possession of the petitioner is therefore invalid.
V. The B.I.R. has only itself to blame for not promptly selling the distrained property of
accused Jaime C. Ancla in order to realize the amount of back taxes owed by Jaime C.
Ancla to the Bureau." 24
In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the
subject matter of the controversy. Corollary to this is the question of whether petitioner
can be considered a public officer by reason of his being designated by the Bureau of
Internal Revenue as a depositary of distrained property.
The Court’s Ruling
The petition is meritorious.
Jurisdiction of the Sandiganbayan
It is hornbook doctrine that in order" (to) ascertain whether a court has jurisdiction or
not, the provisions of the law should be inquired into." 25 Furthermore, "the jurisdiction
of the court must appear clearly from the statute law or it will not be held to exist. It
cannot be presumed or implied." 26 And for this purpose in criminal cases, "the
jurisdiction of a court is determined by the law at the time of commencement of the
action." 27
In this case, the action was instituted with the filing of this information on January 12,
1990; hence, the applicable statutory provisions are those of P.D. No. 1606, as
amended by P.D. No. 1861 on March 23, 1983, but prior to their amendment by R.A.
No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No. 1606 provided that: jgc:chanrobles.com.ph
"SEC. 4. Jurisdiction. — The Sandiganbayan shall exercise: chanrob1es virtual 1aw library
(a) Exclusive original jurisdiction in all cases involving: chanrob1es virtual 1aw library
(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft
and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of
the Revised Penal Code;
(2) Other offenses or felonies committed by public officers and employees in relation to
their office, including those employed in government-owned or controlled corporations,
whether simple or complexed with other crimes, where the penalty prescribed by law is
higher than; prision correccional or imprisonment for six (6) years, or a fine of
P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this
paragraph where the penalty prescribed by law does not exceed prision correccional or
imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper
Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit
Trial Court.
x x x
In case private individuals are charged as co-principals, accomplices or accessories with

the public officers or employees, including those employed in government-owned or
controlled corporations, they shall be tried jointly with said public officers and
employees.
x x x
The foregoing provisions unequivocally specify the only instances when the
Sandiganbayan will have jurisdiction over a private individual, i.e. when the complaint
charges the private individual either as a co-principal, accomplice or accessory of a
public officer or employee who has been charged with a crime within its jurisdiction.
Azarcon: A Public Officer or A Private Individual
The Information does not charge petitioner Azarcon of being a co-principal, accomplice
or accessory to a public officer committing an offense under the Sandiganbayan’s
jurisdiction. Thus, unless petitioner be proven a public officer, the Sandiganbayan will
have no jurisdiction over the crime charged. Article 203 of the RPC determines who are
public officers: jgc:chanrobles.com.ph
"Who are public officers. — For the purpose of applying the provisions of this and the
preceding titles of the book, any person who, by direct provision of the law, popular
election, popular election or appointment by competent authority, shall take part in the
performance of public functions in the Government of the Philippine Islands, or shall
perform in said Government or in any of its branches public duties as an employee,
agent, or subordinate official, of any rank or classes, shall be deemed to be a public
officer."
cralaw virtua1aw library
Thus,
"(to) be a public officer, one must be —
(1) Taking part in the performance of public functions in the government, or Performing
in said Government or any of its branches public duties as an employee, agent, or
subordinate official, of any rank or class; and
(2) That his authority to take part in the performance of public functions or to perform
public duties must be —
a. by direct provision of the law, or

b. by popular election, or
c. by appointment by competent authority." 28
Granting arguendo that the petitioner, in signing the receipt for the truck constructively
distrained by the BIR, commenced to take part in an activity constituting public
functions, he obviously may not be deemed authorized by popular election. The next
logical query is whether petitioner’s designation by the BIR as a custodian of distrained
property qualifies as appointment by direct provision of law, or by competent authority.
29 We answer in the negative.
The Solicitor General contends that the BIR, in effecting constructive distraint over the
truck allegedly owned by Jaime Ancla, and in requiring Petitioner Alfredo Azarcon who
was in possession thereof to sign a pro forma receipt for it, effectively "designated"
petitioner a depositary and, hence, citing U.S. v. Rastrollo, 30 a public officer. 31 This is
based on the theory that
"(t)he power to designate a private person who has actual possession of a distrained
property as a depository of distrained property is necessarily implied in the BIR’s power
to place the property of a delinquent tax payer (sic) in distraint as provided for under
Sections 206, 207 and 208 (formerly Sections 303, 304 and 305) of the National
Internal Revenue Code, (NIRC) . . ." 32
We disagree. The case of U.S. v. Rastrollo is not applicable to the case before us simply
because the facts therein are not identical, similar or analogous to those obtaining here.
While the cited case involved a judicial deposit of the proceeds of the sale of attached
property in the hands of the debtor, the case at bench dealt with the BIR’s
administrative act of effecting constructive distraint over alleged property of taxpayer
Ancla in relation to his back taxes, property which was received by Petitioner Azarcon.
In the cited case, it was clearly within the scope of that court’s jurisdiction and judicial
power to constitute the judicial deposit and give "the depositary a character equivalent
to that of a public official." 33 However, in the instant case, while the BIR had authority
to require Petitioner Azarcon to sign a receipt for the distrained truck, the NIRC did not
grant it power to appoint Azarcon a public officer.
It is axiomatic in our constitutional framework, which mandates a limited government,

that its branches and administrative agencies exercise only that power delegated to
them as "defined either in the Constitution or in legislation or in both." 34 Thus,
although the "appointing power is the exclusive prerogative of the President, . . ." 35
the quantum of powers possessed by an administrative agency forming part of the
executive branch will still be limited to that "conferred expressly or by necessary or fair
implication in its enabling act. Hence," (a)n administrative officer, it has been held, has
only such powers as are expressly granted to him and those necessarily implied in the
exercise thereof. "36 Corollarily, implied powers "are those which are necessarily
included in, and are therefore of lesser degree than the power granted. It cannot
extend to other matters not embraced therein, nor are not incidental thereto." 37 For to
so extend the statutory grant of power "would be an encroachment on powers
expressly lodged in Congress by our Constitution." 38 It is true that Sec. 206 of the
NIRC, as pointed out by the prosecution, authorizes the BIR to effect a constructive
distraint by requiring "any person to preserve a distrained property, thus: chanrob1es virtual 1aw library
x x x"
The constructive distraint of personal property shall be effected by requiring the

taxpayer or any person having possession or control of such property to sign a receipt
covering the property distrained and obligate himself to preserve the same intact and
unaltered and not to dispose of the same in any manner whatever without the express
authority of the Commissioner.
x x x
However, we find no provision in the NIRC constituting such person a public officer by
reason of such requirement. The BIR’s power authorizing a private individual to act as a
depositary cannot be stretched to include the power to appoint him as a public officer.
The prosecution argues that "Article 222 of the Revised Penal Code . . . defines the
individuals covered by the term ‘officers’ under Article 217 39 . . ." of the same Code.
40 And accordingly, since Azarcon became a "depository of the truck seized by the BIR"
he also became a public officer who can be prosecuted under Article 217 . . ." 41
The Court is not persuaded. Article 222 of the RPC reads: jgc:chanrobles.com.ph
"Officers included in the preceding provisions. — The provisions of this chapter shall
apply to private individuals who, in any capacity whatever, have charge of any insular,
provincial or municipal funds, revenues, or property and to any administrator or
depository of funds or property attached, seized or deposited by public authority, even
if such property belongs to a private individual." cralaw virtua1aw library
"Legislative intent is determined principally from the language of a statute. Where the
language of a statute is clear and unambiguous, the law is applied according to its
express terms, and interpretation would be resorted to only where a literal
interpretation would be either impossible or absurd or would lead to an injustice." 42
This is particularly observed in the interpretation of penal statutes which "must be
construed with such strictness as to carefully safeguard the rights of the defendant . . ."
43 The language of the foregoing provision is clear. A private individual who has in his
charge any of the public funds or property enumerated therein and commits any of the
acts defined in any of the provisions of Chapter Four, Title Seven of the RPC, should
likewise be penalized with the same penalty meted to erring public officers. Nowhere in
this provision is it expressed or implied that a private individual falling under said
Article 222 is to be deemed a public officer.
After a thorough review of the case at bench, the Court thus finds Petitioner Alfredo
Azarcon and his co-accused Jaime Ancla to be both private individuals erroneously
charged before and convicted by Respondent Sandiganbayan which had no jurisdiction
over them. The Sandiganbayan’s taking cognizance of this case is of no moment since"
(j)urisdiction cannot be conferred by . . . erroneous belief of the court that it had
jurisdiction." 44 As aptly and correctly stated by the petitioner in his memorandum: jgc:chanrobles.com.ph
"From the foregoing discussion, it is evident that the petitioner did not cease to be a
private individual when he agreed to act as depositary of the garnished dump truck.
Therefore, when the information charged him and Jaime Ancla before the
Sandiganbayan for malversation of public funds or property, the prosecution was in fact
charging two private individuals without any public officer being similarly charged as a
co-conspirator. Consequently, the Sandiganbayan had no jurisdiction over the
controversy and therefore all the proceedings taken below as well as the Decision
rendered by Respondent Sandiganbayan, are null and void for lack of jurisdiction." 45
WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are hereby
SET ASIDE and declared NULL and VOID for lack of jurisdiction. No costs. chanrobles lawlibrary : rednad
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.
FIRST DIVISION
[G.R. No. 111091. August 21, 1995.]
ENGINEER CLARO J. PRECLARO, Petitioner, v. SANDIGANBAYAN and PEOPLE

OF THE PHILIPPINES, Respondents.
SYLLABUS
1. CRIMINAL LAW; ANTI-GRAFT AND CORRUPT PRACTICES ACT; SECTION 2 (b)

THEREOF; PUBLIC OFFICER DEFINED AND CLASSIFIED; APPLICATION IN CASE AT BAR.
— Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which,
according to Sec. 2(b) thereof "includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified or exemption service
receiving compensation, even nominal, from the government. . . ." ‘Ihe word "includes"
used in defining a public officer in Sec. 2(b) indicates that the definition is not
restrictive. The term "classified, unclassified or exemption service" were the old
categories of positions in the civil service which have been reclassified into Career
Service and Non-Career Service by PD 807 providing for the organization of the Civil
Service Commission and by the Administrative Code of 1987. Non-career service in
particular is characterized by — (1) entrance on bases other than those of the usual
test 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 which is limited to the duration of a particular
project for which purpose employment was made. The Non-Career Service shall
include: (1) Elective officials and their personal or confidential staff, (2) Secretaries and
other officials of Cabinet rank who hold their positions at the pleasure of the President
and their personal or confidential staff(s); (3) Chairman and members of commissions
and boards with fixed terms of office and their personal or confidential staff, (4)
Contractual personnel or those whose employment in the government is in accordance
with a special contract to undertake a specific work or job, requiring special or technical
skills not available in the employing agency, to be accomplished within a specific period,
which in no case shall exceed one year, and performs or accomplishes the specific work
or job, under his own responsibility with a minimum of direction and supervision from
the hiring agency,. and (5) Emergency and seasonal personnel. It is quite evident that
petitioner fails under the non-career service category (formerly termed the unclassified
or exemption service) of the Civil Service and thus is a public officer as defined by Sec.
2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019). The fact that petitioner
is not required to record his working hours by means of a bundy clock or did not take
an oath of office became unessential considerations in view of the above-mentioned
provision of law clearly including petitioner within the definition of a public officer.
2. ID.; ID.; SECTION 3 (b) THEREOF; COMMITTED BY MERE DEMAND; CASE AT BAR. —
Petitioner asserts that it was improbable for him to have demanded P200,000.00 from
Engr. Resoso, when he could have just talked directly to the contractor himself. It is
quite irrelevant from whom petitioner demanded his percentage share of P200,000.00
whether from the contractor’s project engineer, Engr Alexander Resoso or directly from
the contractor himself Engr. Jaime Sta. Maria, Sr. That petitioner made such a demand
is all that is required by Sec. 3(b) of R.A. No. 3019 and this element has been
sufficiently established by the testimony of Engr. Resoso.
3. ID.; ID.; ID.; ESTABLISHED IN CASE AT BAR. — Similarly, petitioner’s averment that
he could not be prosecuted under the Anti-Graft & Corrupt Practices Act because his
intervention "was not required by law but in the performance of a contract of services
entered into by him as a private individual contractor," is erroneous. As discussed
above, petitioner falls within the definition of a public officer and as such, his duties
delineated in Annex "B" of the contract of services are subsumed under the phrase
"wherein the public officer in his official capacity has to intervene under the law."
Petitioner’s allegation, to borrow a cliche, is nothing but a mere splitting of hairs.
Among petitioner’s duties as project manager is to evaluate the contractor’s
accomplishment reports/billings hence, as correctly ruled by the Sandiganbayan he has
the "privilege and authority to make a favorable recommendation and act favorably in
behalf of the government," signing acceptance papers and approving deductives and
additives are some examples. All of the elements of Sec. 3(b) of the Anti-Graft &
Corrupt Practices Act are, therefore, present. Anent the second issue, we likewise find
Petitioner’s allegations completely bereft of merit. Petitioner insists that the prosecution
has failed to establish his guilt beyond reasonable doubt and that the charges against
him should be rejected for being improbable, unbelievable and contrary to human
nature. We disagree. Proof beyond reasonable doubt does not mean that which
produces absolute certainty. Only moral certainty is required or "that degree of proof
which produces conviction in an unprejudiced mind. "We have extensively reviewed the
records of this case and we find no reason to overturn the findings of the
Sandiganbayan.
DECISION
KAPUNAN, J.:
On 14 June 1990, petitioner was charged before the Sandiganbayan with a violation of
Sec. 3(b) of R.A. No. 3019 as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act. The information against him read as follows:
chanrob1es virtual 1aw library
That on or about June 8, 1990, or sometime prior thereto, in Quezon City, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused, a public
officer, being then the Project Manager/Consultant of the Chemical Mineral Division,
Industrial Technology Development Institute, Department of Science and Technology, a
component of the Industrial Development Institute (ITDI for brevity) which is an
agency of the Department of Science and Technology (DOST for brevity), wherein the
Jaime Sta. Maria Construction undertook the construction of the building in Bicutan,
Taguig, Metro Manila, with a total cost of SEVENTEEN MILLION SIX HUNDRED NINETY
FIVE THOUSAND PESOS (P17,695,000.00) jointly funded by the Philippine and
Japanese Governments, and while the said construction has not yet been finally
completed, Accused either directly requested and/or demanded for himself or for
another, the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00), claimed as part
of the expected profit of FOUR HUNDRED SIXTY THOUSAND PESOS (P460,000.00) in
connection with the construction of that government building wherein the accused had
to intervene under the law in his capacity as Project Manager/Consultant of said
construction — said offense having been committed in relation to the performance of
his official duties.
CONTRARY TO LAW. 1
On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the charges
against him.
On 30 June 1993, after trial on the merits, the Second Division of the Sandiganbayan
rendered judgment finding petitioner guilty beyond reasonable doubt. The dispositive
portion reads as follows:
chanrob1es virtual 1aw library
WHEREFORE, judgment is hereby rendered finding accused Claro Preclaro y Jambalos

GUILTY beyond reasonable doubt of the Violation of Section 3, paragraph (b) of
Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, and he is hereby sentenced to suffer an indeterminate penalty ranging
from SIX (6) YEARS and ONE (1) MONTH, as the minimum, to TEN (10) YEARS and
ONE (1) DAY, as the maximum, perpetual disqualification from public office and to pay
the costs of this action.
SO ORDERED. 2
The antecedent facts are largely undisputed.
On 1 October 1989, the Chemical Mineral Division of the Industrial Technology

Development Institute (ITDI), a component of the Department of Science and
Technology (DOST) employed Petitioner under a written contract of services as Project
Manager to supervise the construction of the ITDI-CMD (JICA) Building at the DOST
Compound in Bicutan, Taguig, Metro Manila. 3
The contract was to remain in effect from October 1, 1989 up to the end of the
construction period unless sooner terminated. 4 Petitioner was to be paid a monthly
salary drawn from counter-part funds duly financed by foreign-assisted projects and
government funds duly released by the Department of Budget and Management. 5
In November 1989, to build the aforementioned CMD Structure, DOST contracted the
services of the Jaime Sta. Maria Construction Company with Engr. Alexander Resoso, as
the company’s project engineer. 6
How petitioner committed a violation of the Anti Graft & Corrupt Practices Act is
narrated in the Comment of the Solicitor General and amply supported by the records.
The material portions are hereunder reproduced: chanrob1es virtual 1aw library
x x x
3. In the month of May, 1990, Alexander Resoso, Project Engineer of the Sta. Maria
Construction Company, was in the process of evaluating a Change Order for some
electricals in the building construction when petitioner approached him at the project
site (p. 11, 25, Ibid.).
4. Unexpectedly, petitioner made some overtures that expenses in the Change Order
will be deductive (meaning, charged to the contractor by deducting from the contract
price), instead of additive (meaning, charged to the owner). Petitioner intimated that he
can forget about the deductive provided he gets P200,000.00, a chunk of the
contractor’s profit which he roughly estimated to be around P460,000.00 (pp. 12-13,
22, Ibid.).
5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the owner of Sta. Maria
Construction Company, Resoso thereafter asked petitioner if he wanted a rendezvous
for him to receive the money. Petitioner chose Wendy’s Restaurant, corner E. Delos
Santos Avenue and Camias Street, on June 6, 1990 at around 8:00 o’clock in the
evening (p. 14, Ibid.).
6. However, Sta. Maria, Sr. asked for two (2) more days or until the 8th of June,
perceiving financial constraints (Ibid.).
7. Petitioner relented, saying "O.K. lang with me because we are not in a hurry." (p. 15,
Ibid.) Petitioner was thereafter asked to bring along the result of the punch list
(meaning, the list of defective or correctible works to be done by the contractor) (p. 15,
Ibid.; p. 10, TSN, 18 Oct. 1991).
8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded to the National Bureau of
Investigation (NBI) to report the incident (p. 15, 35, Ibid.).
9. The NBI suggested an entrapment plan to which Sta. Maria, Sr. signified his
conformity (p. 16, TSN, 12 Oct. 1990). Accordingly, Sta. Maria, Sr. was requested to
produce the amount of P50,000.00 in P500.00 denomination to represent the grease
money (p. 37, TSN, 6 Sept. 1990).
10. The next day, or on 8 June 1990, Resoso delivered the money to the NBI.
Thereafter, the money was dusted with fluorescent powder and placed inside an attache
case (pp. 16-17, Ibid.). Resoso got the attache case and was instructed not to open it.
Similarly, he was advised to proceed at the Wendy’s Restaurant earlier than the
designated time where a group of NBI men awaited him and his companion, Sta. Maria,
Jr. (pp. 17-18, Ibid.).
11. Hence, from the NBI, Resoso passed by the Jade Valley Restaurant in Timog,
Quezon City, to fetch Sta. Maria, Jr. (Ibid.).
12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at the Wendy’s Restaurant.
They were led by the NBI men to a table previously reserved by them which was
similarly adjacent to a table occupied by them (pp. 18-19, Ibid.).
13. Twenty minutes later, petitioner arrived. Supposedly, the following conversation
took place, to wit: chanrob1es virtual 1aw library
JUSTICE BALAJADIA: chanrob1es virtual 1aw library
q. When Dave Preclaro arrived, what did he do?
a. We asked him his order and we talked about the punch list.
q. What was his comment about the punch list?
a. He told us that it is harder to produce small items than big ones.
q. How long did you converse with Engr. Claro Preclaro?
a. I think thirty minutes or so.
q. Was Preclaro alone when he came?
a. Yes, Your Honor.
x x x
PROS. CAOILI: chanrob1es virtual 1aw library
q. When you talk[ed] about his punch list, did you talk about anything else?
a. Engineer Sta. Maria, Jr., they were conversing with Dave Preclaro and he told [him],
"O, paano na." cralaw virtua1aw library
JUSTICE ESCAREAL: chanrob1es virtual 1aw library
q. Who said "Paano na?"
a. Engineer Sta. Maria, [Jr.]. And then Preclaro told [him], "Paano, How will the money
be arranged and can I bring it?" he said.
And then Jimmy Sta. Maria, Jr. told him it was arranged on two bundles on two
envelopes.
And then Dave Preclaro told, "Puede" and he asked Jimmy Sta. Maria, Jr. if there is
express teller and could he deposit during night time but Engineer Sta. Maria, Jr. told
him, "I do not have any knowledge or I do not have any express teller you can deposit.
I only know credit card." cralaw virtua1aw library
PROS. CAOLI: chanrob1es virtual 1aw library
q. When Engr. Sta. Maria intervened and interviewed him that way, was there anything
that happened?
a. Jimmy Sta. Maria, Jr. handed two envelopes to Preclaro.
q. Did Claro Preclaro receive these two envelopes from Engineer Sta. Maria?
a. Yes, sir. (Pp. 19-21, Ibid., See also pp. 13-14, TSN, 29 Oct. 1990.)
14. From the moment petitioner received the two envelopes with his right hand,
thereafter placing them under his left armpit, he was accosted by the NBI men (p. 22,
TSN, 12 Oct. 1990).
15. A camera flashed to record the event. Petitioner instinctively docked to avoid the
taking of pictures. In such manner, the two envelopes fell (p. 23, Ibid.).
16. The NBI men directed petitioner to pick up the two envelopes. Petitioner refused.
Hence, one of the NBI men picked up the envelopes and placed them inside a big brown
envelope (p. 27, Ibid.).
17. Petitioner was thenceforth brought to the NBI for examination (p. 28, Ibid.).
18. At the NBI Forensic Chemistry Section, petitioner’s right palmar hand was tested
positive of fluorescent powder. The same fluorescent powder, however, cannot be
detected in petitioner’s T-shirt and pants (p. 5, TSN, 29 Oct. 1990). 7
x x x.
Thus, as brought out at the outset, an information was filed against petitioner which,
after due hearing, resulted in his conviction by the Sandiganbayan. Not satisfied with
the decision, petitioner instituted the present petition for review, ascribing to the
Sandiganbayan the following errors: chanrob1es virtual 1aw library
1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF THE CASE, INSTEAD OF

DISMISSING IT FOR LACK OF JURISDICTION, THE [PETITIONER] NOT BEING A PUBLIC
OFFICER; and
2. THE SANDIGANBAYAN ERRED IN NOT RULING THAT NOT ALL THE ELEMENTS OF THE
OFFENSE CHARGED HAVE BEEN ESTABLISHED BEYOND REASONABLE DOUBT AND/OR
THAT THE GUILT OF THE [PETITIONER] HAS NOT BEEN ESTABLISHED BEYOND
REASONABLE DOUBT.
We find the petition unmeritorious.
On the first issue, petitioner asserts that he is not a public officer as defined by Sec.
2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019 as amended), because he
was neither elected nor appointed to a public office. Rather, petitioner maintains that
he is merely a private individual hired by the ITDI on contractual basis for a particular
project and for a specified period 8 as evidenced by the contract of services 9 he
entered into with the ITDI. Petitioner, to further support his "theory," alleged that he
was not issued any appointment paper separate from the abovementioned contract. He
was not required to use the bundy clock to record his hours of work and neither did he
take an oath of office. 10
We are not convinced by Petitioner’s arguments.
Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which,
according to Sec. 2(b) thereof "includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified or exemption service
receiving compensation, even nominal, from the government . . ." cralaw virtua1aw library
The word "includes" used in defining a public officer in Sec. 2(b) indicates that the
definition is not restrictive. The terms "classified, unclassified or exemption service"
were the old categories of positions in the civil service which have been reclassified into
Career Service and Non-Career Service 11 by PD 807 providing for the organization of
the Civil Service Commission 12 and by the Administrative Code of 1987. 13
Non-career service in particular is characterized by —
(1) entrance on bases other than those of the usual test 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 which
is limited to the duration of a particular project for which purpose employment was
made.
The Non-Career Service shall include: chanrob1es virtual 1aw library
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions at the
pleasure of the President and their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office and
their personal or confidential staff;
(4) Contractual personnel or those whose employment in the government is in

accordance with a special contract to undertake a specific work or job, requiring special
or technical skills not available in the employing agency, to be accomplished within a
specific period, which in no case shall exceed one year, and performs or accomplishes
the specific work or job, under his own responsibility with a minimum of direction and
supervision from the hiring agency; and
(5) Emergency and seasonal personnel. (Emphasis supplied.) 14
From the foregoing classification, it is quite evident that petitioner falls under the non-
career service category (formerly termed the unclassified or exemption service) of the
Civil Service and thus is a public officer as defined by Sec. 2(b) of the Anti-Graft &
Corrupt Practices Act (R.A. No. 3019).
The fact that petitioner is not required to record his working hours by means of a bundy
clock or did not take an oath of office became unessential considerations in view of the
above-mentioned provision of law clearly including petitioner within the definition of a
public officer.
Similarly, petitioner’s averment that he could not be prosecuted under the Anti-Graft &
Corrupt Practices Act because his intervention "was not required by law but in the
performance of a contract of services entered into by him as a private individual
contractor," 15 is erroneous. As discussed above, petitioner falls within the definition of
a public officer and as such, his duties delineated in Annex "B" of the contract of
services 16 are subsumed under the phrase "wherein the public officer in his official
capacity has to intervene under the law." 17 Petitioner’s allegation, to borrow a cliche,
is nothing but a mere splitting of hairs.
Among petitioner’s duties as project manager is to evaluate the contractor’s

accomplishment reports/billings 18 hence, as correctly ruled by the Sandiganbayan he
has the "privilege and authority to make a favorable recommendation and act favorably
in behalf of the government," signing acceptance papers and approving deductives and,
additives are some examples. 19 All of the elements of Sec. 3(b) of the Anti-Graft &
Corrupt Practices Act are, therefore, present.
Anent the second issue, we likewise find Petitioner’s allegations completely bereft of
merit.
Petitioner insists that the prosecution has failed to establish his guilt beyond reasonable
doubt and that the charges against him should be rejected for being improbable,
unbelievable and contrary to human nature.
We disagree.
Proof beyond reasonable doubt does not mean that which produces absolute certainty.
Only moral certainty is required or "that degree of proof which produces conviction in
an unprejudiced mind." 20 We have extensively reviewed the records of this case and
we find no reason to overturn the findings of the Sandiganbayan.
Petitioner enumerates the alleged improbabilities and inconsistencies in the testimonies

of the prosecution witnesses. We shall examine the testimonies referred to with
meticulousness.
Petitioner asserts that it was improbable for him to have demanded P200,000.00 from
Engr. Resoso, when he could have just talked directly to the contractor himself. It is
quite irrelevant from whom petitioner demanded his percentage share of P200,000.00
whether from the contractor’s project engineer, Engr. Alexander Resoso or directly from
the contractor himself Engr. Jaime Sta. Maria Sr. That petitioner made such a demand
is all that is required by Sec. 3(b) of R.A. No. 3019 and this element has been
sufficiently established by the testimony of Engr. Resoso, thus: chanrob1es virtual 1aw library
x x x
Q You said when you were computing your Change Order Mr. Preclaro or Dave Preclaro
whom you identified approached you, what did you talk about?
A He mentioned to me that we are deductive in our Change Order three and four so
after our conversation I told this conversation to my boss that we are deductible in the
Change Order three and four and then my boss told me to ask why it is deductive.
Q Did you ask the accused here, Dave Preclaro why it is considered deductive?
A Yes, sir.
Q What was his answer if any?
A I asked him that my boss is asking me to ask you how come it became deductive
when my computation is additive and he told me that I have done so much for your
company already and then he picked up cement bag paper bag and computed our
alleged profit amounting to One Hundred Sixty Thousand Pesos and then he told me
that he used to use some percentage in projects maximum and minimum and in our
case he would use a minimum percentage and multiply to 60 and . . .
Q What is 460?
A P460,000.00 and he said take of the butal and get two Hundred Thousand Pesos.
What is the translation now?
WITNESS: chanrob1es virtual 1aw library
A And he said disregard the excess and I will just get the P200,000.00. (Emphasis
supplied.)
PROS CAOILI: chanrob1es virtual 1aw library
Q What does he mean by that if you know?
A I do not know sir.

He just said, I will get the P200.000.00 and tell it to your boss. (Emphasis supplied.)
Q What is P200,000.00?
A It is Two Hundred Thousand Pesos.
Q What did you answer him when be told you that?
A He told me to forget the deductive and electrical and after that I told my boss what
he told me.
Q Who is your boss?
A Santa Maria Sr.
Q What was the reaction of your boss when you relayed the message to Mr. Preclaro?
A The next day he told me to ask Dave where and when to pick up the money so the
next day I asked Dave "Where do you intend to get the money, the Boss wanted to
know." cralaw virtua1aw library
Q What was the answer of Dave?
A And he told me, Wendy’s Restaurant at 3:00 o’clock.
Q When?
A June 6 Wednesday.
Q When he told you that did you comply with June 6 appointment?
A I told my boss what he told me again that the meeting will take place at Wendy’s
Restaurant corner Edsa and Camias Street at around 8:00 o’clock p.m. June 6,
Wednesday.
Q What did your boss tell you?
A The next day he told me to ask Dave.
Q What did your boss tell you?
A My boss told me to ask Dave to postpone the meeting on June 6 to be postponed on

June 8 at the same place and same time because my boss is having financial problem.
Q Did you relay the postponement to Dave Preclaro?

A Yes sir. I told what my boss told me.
Q What was his reaction?
A Dave told me "O.K. lang with me" because we are not in a hurry. Anyway we are the
ones to sign the acceptance papers and my boss instructed me that on Friday to ask
Dave to bring along the result of the punch list and if possible also to bring along the
acceptance papers to be signed by Dave, Lydia Mejia and Dr. Lirag the director.
Q What happened next after meeting with Preclaro to relay the postponement if any?
A Nothing happened. The next day, Thursday the boss instructed me to go with him to
the NBI to give a statement.
Q Did you go to the NBI and report to the incident to the NBI?
A Yes sir.
Q Did you give a statement before any of the agents of the NBI?
A Yes sir. 21
x x x
Likewise, petitioner’s alleged refusal to see Mr. Jaime Sta. Maria Sr. when the latter
tried to arrange meetings with him regarding his demand 22 does not weaken the
cause against petitioner. It does not at all prove that petitioner did not ask for money.
Conceivably, petitioner did not muster enough courage to ask money directly from the
contractor himself. Getting the amount through the project engineer would be safer
because if Mr. Sta. Maria, Sr. had refused to give money, petitioner could always deny
having made the demand.
Petitioner contends that the percentage demanded in the amount of P200,000.00 is too
high considering that the estimated profit of the contractor from the CMD project is only
P460,000.00. In petitioner’s words, this would "scare the goose that lays the golden
egg." 23 We reject this argument. The aforementioned contractor’s profit is petitioner’s
own computation as testified to by Engr. Resoso: chanrob1es virtual 1aw library
x x x
A I asked him that my boss is asking me to ask you how come it became deductive
when my computation is additive and he told me that I have done so much for your
company already and then he picked up cement bag paper bag and computed our
alleged profit amounting to One Hundred Sixty Thousand Pesos and then he told me
that he used to use some percentage in projects maximum and minimum and in our
case he would use a minimum percentage and multiply to 460 and . . . (Emphasis
ours.)
Q What is 460?
A P460,000.00 and it ended to P215 thousand or P20,000.00 and he said take of the
butal and get the Two Hundred Thousand Pesos. (Emphasis supplied.)
What is the translation now?
A And he said disregard the excess and I will just get the P200,000.00.
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to your boss. 24
x x x
The records, however, do not show the true and actual amount that the Sta. Maria
Construction will earn as profit. There is, therefore, no basis for petitioner’s contention
as the actual profit may be lower or higher than his estimation.
Besides, as related by Engr. Resoso, petitioner considers the P200,000.00 percentage

proper compensation since he has allegedly done so much for the Sta. Maria
construction company.25 cralaw:red
Petitioner also argues that: chanrob1es virtual 1aw library
According to STA. MARIA, SR., they were deductive by P280,000.00 (Id., pp. 34-35).
If STA. MARIA CONSTRUCTION was deductive in the amount of P280,000.00, why

would the petitioner still demand P200,000.00 which would increase the contractor’s
loss to P480,000.00!
It might have been different if the changes were additive where STA. MARIA
CONSTRUCTION would have earned more, thereby providing motive for the petitioner
to ask for a percentage! 26
But this is precisely what petitioner was bargaining for — P200,000.00 in exchange for
forgetting about the deductive 27 and thus prevent the Sta. Maria Construction from
incurring losses.
Petitioner’s contention that it was impossible for him to make any demands because the
final decision regarding accomplishments and billing lies with the DOST technical
committee is unacceptable. Petitioner is part of the abovementioned technical
committee as the ITDI representative consultant. This is part of his duties under the
contract of services in connection with which he was employed by the ITDI. Even,
assuming arguendo that petitioner does not make the final decision, as
supervisor/consultant, his recommendations will necessarily carry much weight. Engr.
Resoso testified, thus: chanrob1es virtual 1aw library
Q As a Project Engineer to whom do you present your billing papers accomplishment

report or purchase order?
A The billing paper was being taken cared of by the, of our office. I personally do my
job as supervision in the construction.
Q Do you have any counterpart to supervise the project from the government side?
A Yes, we have.
Yes, the DOST have a technical Committee Infra-Structure Committee and also the
ITDI as its own representative.
Q Who composed the Technical Committee of the DOST?
A A certain Engineer Velasco, Engineer Sande Banez and Engineer Mejia.
Q How about the ITDI?
A The ITDI representative composed of Dave Preclaro.
Q Who is this Dave Preclaro?
A He is the consultant of ITDI. (Emphasis supplied.)
x x x
ATTY. CAOILI: chanrob1es virtual 1aw library
Q As Project Engineer do you consult to any body regarding your job?
A First if there is any problem in the site I consult my boss.
Q How about with the other consultants representing the ITDI and DOST?
A In the construction site we have meeting every Monday to discuss any problem.
Q With whom do you discuss this problem?
A The Infra-structure Committee of DOST and the Infra-structure Committee of ITDI,

the architect and the contractor. We had weekly meetings.
Q What matters if any do you consult with Mr. Claro Preclaro?
ATTY. JIMENEZ: chanrob1es virtual 1aw library
No basis.
They met on problems on Mondays.
But there is no mention of Preclaro specifically.
With the representative of DOST and Preclaro.
Does that also mean that Preclaro is also among the representatives he is going to
consult with?
Well any way . . .
Witness may answer the question.
Read back the question.
COURT STENOGRAPHER: chanrob1es virtual 1aw library
Reading back the question as ordered by the Court.
A Every Monday meeting we tackle with accomplishment report the billing papers. 28
(Emphasis supplied.)
x x x
Petitioner also claims that the testimonies of the prosecution witnesses regarding the
entrapment itself are conflicting, doubtful or improbable: chanrob1es virtual 1aw library
(aaa) according to RESOSO, only FOUR (4) P500 bills were dusted with flourescent
powder and used in the alleged entrapment.
Contradicting RESOSO, STA. MARIA, SR. said that he gave fifty thousand (P50,000.00)
pesos in P500 denomination to the NBI. 29
There is no such inconsistency. Said witnesses were testifying on two different subjects.
Engr. Sta. Maria, Sr.’s testimony touched on the amount he gave the NBI for use in the
entrapment while Engr. Resoso’s declaration referred only to the number of bills dusted
with flourescent powder.
Petitioner, likewise, misappreciated the following testimony of Resoso: chanrob1es virtual 1aw library
Q What did he do with the two envelopes upon receiving the same?
A Then he asked Jaime Sta. Maria, Jr. if there is bank teller express, if he could deposit
the money but Mr. Sta. Maria said, "I do not have, I only have credit cards." 30
Petitioner intended to deposit the money in his own account not that of Mr. Sta. Maria,
Jr. He was merely inquiring from the latter if there was an express teller nearby where
he could make the deposit. Mr. Sta. Maria Jr. himself testified as follows: chanrob1es virtual 1aw library
A He asked me if there was express teller. I told him I do not know then he asked me
whether it is possible to deposit at the Express Teller at that time. I told him I don’t
know because I have no express teller card and he asked me how am I going to
arrange, how was it arranged if I will bring it, can I bring it. Then I told him that it was
placed in two envelopes consisting of 500 Peso bills and then he said "Okay na yan." 31
The failure of the NBI to take photographs of the actual turn-over of the money to
petitioner is not fatal to the People’s cause. The transaction was witnessed by several
people, among whom were Engr. Resoso, Mr. Sta. Maria Jr. and the NBI agents whose
testimonies on the circumstances before, during and after the turn-over are consistent,
logical and credible.
According to NBI Agent Francisco Balanban Sr., they purposely took no photographs of
the actual turn-over so as not to alert and scare off the petitioner. During cross-
examination Agent Balanban Jr. stated: chanrob1es virtual 1aw library
x x x
Q Now, of course, this entrapment operation, you made certain preparation to make
sure that you would be able to gather evidence in support of the entrapment?
A Yes sir.
Q As a matter of fact you even brought photographer for the purpose?
A That is right sir.
Q And that photographer was precisely brought along to record the entrapment?
A Yes sir.
Q From the beginning to the end, that was the purpose?
A At the time of the arrest sir.
From the time of the handing over of the envelopes until the entrapment would have
been terminated?
A No sir we plan to take the photograph only during the arrest because if we take
photographs he would be alerted during the handing of the envelopes. (Emphasis
supplied.)
Q So you did not intend to take photographs of the act of handing of the envelopes to
the suspect?
A We intended but during that time we cannot take photographs at the time of the
handing because the flash will alert the suspect. (Emphasis supplied.)
Why did you not position the photographer to a far distance place with camera with
telescopic lens?
A We did not Your Honor.
So was it your intention to take photographs only at the time that he is already being
arrested?
A Yes sir. 32
x x x
Petitioner insists that when his hands were placed under ultra-violet light, both we’re
found negative for flourescent powder. This is petitioner’s own conclusion which is not
supported by evidence. Such self-serving statement will not prevail over the clear and
competent testimony and the report 33 submitted by the forensic expert of the NBI Ms.
Demelen R. dela Cruz, who was the one who conducted the test and found petitioner’s
right palmar hand positive for flourescent powder, the same hand he used, according to
witnesses Resoso and Sta. Maria Jr., to get the money from the latter.
x x x
Q Mrs. dela Cruz since when have you been a Forensic Chemist at NBI?
A Since 1981 sir.
Q By the way, is the defense willing to admit that the witness is a competent as . . .
Admitted Your Honor.
Madam Witness did you conduct a forensic examination in the person of one Dave
Preclaro y Jambalos?
A Yes sir.
Q If that person whom you examined is here in court would you be able to recognize
him?
We admit that the accused is the one examined by the witness.
ATTY. CAOILI: chanrob1es virtual 1aw library
Did you prepare the result of the examination in writing?
A Yes sir.
Showing to you Physic Examination No. 90-961 which for purposes of identification has
already been marked as Exh. H what relation has this have with the report that you
mentioned a while ago?
A This is the same report that I prepared sir.
Q How did you conduct such flourescent examination?
A The left and right hands of the accused were placed under the ultra-violet lamp sir.
Q What was the result?
A It gave a . . . under the ultra-violet lamp the palmer hands of the suspect gave
positive result for the presence of flourescent powder.
Q What palmar hands?
A Right hand sir.
Q What other examination did you conduct?
A And also the clothing, consisting of the t-shirts and the pants were examined. Under
the ultra violet lamp the presence of the flourescent powder of the t-shirts and pants
cannot be seen or distinguished because the fibers or the material of the cloth under
the ultra violet lamp was flouresce.
Q Please tell the Court why the t-shirts and pants under the ultraviolet lamp was
flouresce?
A The materials or the fibers of the clothings it could have been dyed with flourescent
dyes sir. 34
x x x
What we find improbable and contrary to human experience is petitioner’s claim that he
was set up by Engr. Sta. Maria Sr. and Engr. Resoso for no other purpose but revenge
on account of petitioner’s failure to recommend the Sta. Maria Construction to perform
the extra electrical works. 35
The Sandiganbayan has aptly ruled on this matter, thus: chanrob1es virtual 1aw library
For another, the claim of accused that there was ill-will on the part of the construction
company is hardly plausible. It is highly improbable for the company to embark on a
malicious prosecution of an innocent person for the simple reason that such person had
recommended the services of another construction firm. And it is extremely impossible
for such company to enlist the cooperation and employ the services of the
government’s chief investigative agency for such an anomalous undertaking. It is more
in accord with reason and logic to presuppose that there was some sort of a
mischievous demand made by the accused in exchange for certain favorable
considerations, such as, favorable recommendation on the completeness of the project,
hassle-free release of funds, erasure of deductives, etc. Indeed, the rationale for the
occurrence of the meeting and the demand for money is infinite and boundless. 36
As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who was then
engaged in the construction of another DOST building, would not risk his business or
livelihood just to exact revenge which is neither profitable nor logical. As we aptly
stated in Maleg v. Sandiganbayan: 37
It is hard to believe that the complainant who is a contractor would jeopardize and
prejudice his business interests and risk being blacklisted in government infrastructure
projects, knowing that with the institution of the case, he may find it no longer
advisable nor profitable to continue in his construction ventures. It is hardly probable
that the complainant would weave out of the blue a serious accusation just to retaliate
and take revenge on the accused.
From the foregoing, the conclusion is inescapable that on the basis of the testimonial
and documentary evidence presented during the trial, the guilt of petitioner has been
established beyond reasonable doubt.
WHEREFORE, the appealed decision of the Sandiganbayan is hereby AFFIRMED.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo, Kapunan and Hermosisima, Jr., JJ., concur.
EN BANC
[G.R. No. 150540. October 28, 2003.]
DIMALUB P. NAMIL, ABDULNASSER TIMAN, TERESITA G. AKOB, MALIGA

AMILUDIN and EPAS GUIAMEL, Petitioners, v. COMMISSION ON
ELECTIONS, Public Respondent,
JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G. KARNAIN,

ABDULGAPHAR M. MUSTAPHA, ABDULRAKMAN TALIKOP and WILSON
SABIWANG, Public Respondents.
DECISION
CALLEJO, SR., J.:
This is a special civil action for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, as amended, to set aside the November 6, 2001 Resolution No. 4615, 1
promulgated by the Commission on Elections (COMELEC) en banc 2 installing the
private respondents as members of the Sangguniang Bayan of Palimbang, Sultan
Kudarat, although the petitioners had already taken their respective oaths and assumed
offices in the same elective positions. chanrob1es virtua1 1aw 1ibrary
The antecedents are as follows: chanrob1es virtual 1aw library
On May 14, 2001, the election for the members of the Sangguniang Bayan was held in
Palimbang, Sultan Kudarat.
On May 20, 2001, the Municipal Board of Canvasser of Palimbang issued Certificate of
Canvass of Votes and Proclamation (COCVP) No. 8031108 3 which contained, inter alia,
the petitioners and the Sangguniang Bayan winning candidates: chanrob1es virtual 1aw library
1. NOREN B. APIL
2. MALOD B. MOSADI
3. DIMALUB P. NAMIL
4. ABDULNASSER A. TIMAN
5. TERESITA G. AKOB
6. MABANING P. SAMAMA
7. EPAS T. GUIAMEL
8. MALIGA M. AMILUDIN
The above-named candidates took their oath, and assumed their offices on June 30,
2001 4 as members of the Sangguniang Bayan of Palimbang.
The next day, May 21, 2001, the Municipal Board of Canvassers of Palimbang issued
COCVP No. 8031109 which listen the private respondents as winners, namely: chanrob1es virtual 1aw library
1. JOENIME B. KAPINA
2. MONIB B. WALINGWALING
3. MAULANA G. KARNAIN
4. ABDULGAPHAR M. MUSATAPHA
5. MALOD B. MOSADI
6. ABDULRAKMAN A. TALIKOP
7. WILSON K. SABIWANG
8. MABANING P. SAMAMA
Thereafter, private respondent Joenime B. Kapina wrote the COMELEC requesting that
she and the others who were proclaimed as winners on May 21, 2001 be recognized as
the winning candidates and the new members of the Sangguniang Bayan of Palimbang,
Sultan Kudarat. Appended to said letter was a certification issued by Regional Election
Director Clarita N. Callar, Region XII, Cotabato City, that the private respondents
named in the COCVP No. 8031109, issued on May 21, 2001, were duly proclaimed as
the winning candidates for the said municipality. When apprised of the said letter, the
Commissioner-in-Charge for Region XII, Mehol K. Sadain, conducted an investigation on
the matter of having two (2) sets of winning candidates as members of the
Sangguniang Bayan for Palimbang. He issued Memorandum No. 2001-09-005 requiring
the Law Department, the Regional Election Registrar and the Provincial Election
Supervisor to submit their respective reports/comments on the letter. The said officers
submitted their respective memorandum, thus: chanrob1es virtual 1aw library
1. Memo dated September 11, 2001 of Atty. Jose Balbuena, Director Law Department,
to the effect that, "our Comelec field officials in Region XII who directly participated in
the canvassing who were named in (Memo No. 2001-09-001) could best provide the
needed explanation and information" on the double proclamation of Sangguniang Bayan
winners in Palimbang, Sultan Kudarat.
2. Memo dated September 6, 2001 of Atty. Clarita Callar, Regional Election Director,
Region XII, to the effect that the Election Assistant Amy Laguda who issued the
certification on the proclamation based on Certificate No. 8031109 dated May 21, 2001
verified the genuineness of her signature on the said certification, and further said that
at the time she issued the certification the PES had not yet received a copy of
Certificate No. 8031108 dated May 20, 2001. Further, Atty. Callar referred to the
verification of Ms. Celia Romero that per records of the RSD, "the names appearing as
elected members of the Sangguniang Bayan for the Municipality of Sultan Kudarat . . .
are those proclaimed in Certificate of Canvass of Votes & Proclamation No. 8031109."
Incidentally, Ms. Romero also issued a certification that the serial numbers of the
Certificates of Canvass of Votes and Proclamation were 8031108 for Lambayong, SK
and 8031109 for Palimbang, SK.
3. Memo filed on September 6, 2001 by Atty. Lintang H. Bedol, PES, Sultan Kudarat,
recommending that the parties should file the appropriate case/s before the
Commission, instead of coursing their redress through the PES of Sultan Kudarat or the
RED of Region XII.
4. A confidential certification of EO Malic Sansarona dated September 12, 2001 to the

effect that "the Certificate of Canvass of Votes and Proclamation . . . No. 8031109
dated June 21, 2001 is [the] genuine and valid proclamation of elected Municipal
Officials of the Municipality of Palimbang, Sultan Kudarat," and that the other
proclamation [No. 8031108] "is fictitious and falsified.
Acting on the said Memoranda, Commissioner Sadain submitted his Recommendation 5

to the COMELEC, thus: chanrob1es virtual 1aw library
1. Finds that there was a VALID PROCLAMATION of the winning candidates for positions
of Members of the Sangguniang Bayan of Palimbang, Sultan Kudarat as contained in
Certificate of Canvass of Votes and Proclamation No. 8031109;
2. That there being a VALID PROCLAMATION, there is NO NEED for adjudication on this
matter; and therefore
3. Respectfully RECOMMENDS to the Commission En Banc, the adoption of the following

recommendation [Annex "D" ] of Atty. Jose P. Balbuena, Dir., Law Department and
Atty. Gregorio T. Saraos, Attorney II, IPD, Law Department.
PREMISES CONSIDERED, the Law Department RECOMMENDS to issue an Order for the
immediate installation of the winning members of the Sangguniang Bayan [of
Palimbang, Sultan Kudarat], namely: JOENIME B. KAPINA, MONIB B. WALINGWALING,
MAULANA G. KARNAIN, ABDULGAPHAR M . MUSTAPHA, MALOD B. MOSADI,
ABDULRAKMAN A. TALIKOP, WILSON K. SABIWANG, AND MABANING P. SAMAMA . . .
and for said purpose, to direct the Brigade Commander, 60 1st Brigade Pulutana of
General Santos City, Saranggani Province, to effect and enforce the said Order and to
submit his compliance within five (5) days from notice hereof .
Acting on the recommendation of Commissioner Sadain, the public respondent issued

on November 6, 2001 the assailed Resolution No. 4615. The dispositive portion reads:
1aw 1ibrary
chanrob1es virtua1
WHEREFORE, in view of the foregoing, the Commission RESOLVED, as it hereby

RESOLVES, (1) that the proclamation of the winning candidates contained in Certificate
of Canvass of Votes and Proclamation No. 8031109 is a valid proclamation; (2) to adopt
the recommendation of the Law Department which is in accordance with the result of
the investigation conducted by the Commissioner-in-Charge; and herein orders the
immediate installation of JOENIME B. KAPINA, MONIB B. WALINGWALING, MAULANA G.
KARNAIN, ABDULGAPHAR M. MUSTAPHA, MALOD B. MOSADI, ABDULRAKMAN A.
TALIKOP, WILSON K. SABIWANG, AND MABANING P. SAMAMA as the duly elected
members of the Sangguniang Bayan of Palimbang, Sultan Kudarat. 6
The petitioners contend that the public respondent’s Resolution No. 4615 is null and
void since it was issued without according them due notice and hearing, contrary to the
enshrined principle of due process. The public respondent thus committed a grave
abuse of discretion amounting to lack or excess of jurisdiction.
The petitioners allege that they were never accorded the chance to present their side in
connection with the investigation that was purportedly conducted by Commissioner
Sadain and on the memoranda/report of the public respondent’s officers. The public
respondent simply approved the recommendation of Commissioner Sadain. The
petitioners were kept in the dark, learned about the controversy only when they were
notified of the assailed resolution of the public Respondent.
The public respondent, through the Office of the Solicitor General, as well as the private
respondents, asserts that the petitioners failed to file a motion for reconsideration of
the assailed decision before instituting this action with this Court; hence, the petition is
premature. It is pointed out that the public respondent has broad powers to enforce all
election laws, it has the power to control and supervise the proceedings of the board of
canvassers, and the power to suspend or annul proclamation. When it learned about
the two (2) sets of winning candidates as members of Sangguniang Bayan of
Palimbang, Sultan Kudarat, the public respondent required an investigation to be
conducted by one of the commissioners, who required the election officers in the place
concerned to submit their reports on the matter. After a study of the various reports, it
was ascertained that COCVP (C.E. Form No. 25) No. 8031108 was null and void,
fictitious and falsified. The public respondent made a finding that the genuine COCVP
was that one bearing Serial No. 8031109, intended for the Municipality of Palimbang,
Sultan Kudarat. It was thus incumbent upon the public respondent to order the
immediate installation of the winning candidates on the basis of the genuine COCVP to
give effect to the will of the electorate, conformably to its mandate under Section 242
of the Omnibus Election Code and the ruling of this Court in Aguam v. Commission on
Elections. 7
The public respondent further asserts that the twin requirement of notice and hearing in
annulment of proclamation is not applicable when the proclamation is null and void,
citing Utto v. Commission on Elections. 8
The petition is meritorious.
While it is true that the COMELEC is vested with a broad power to enforce all election
laws, the same is subject to the right of the parties to due process. In this case, the
petitioners had been proclaimed as the winning candidates and had assumed their
office. Since then, they had been exercising their rights and performing their duties as
members of the Sangguniang Bayan of Palimbang, Sultan Kudarat. Their proclamation
on May 20, 2001 enjoys the presumption of regularity and validity since no contest or
protest was even filed assailing the same. The petitioners cannot be removed from
office without due process of law. Due process in the proceedings before the public
respondent exercising its quasi-judicial functions, requires due notice and hearing,
among others. Thus, although the COMELEC possesses, in appropriate cases, the power
to annul or suspend the proclamation of any candidate, we also ruled in Fariñas v.
Commission on Elections, Reyes v. Commission on Elections and Gallardo v.
Commission on Elections that the COMELEC is without power to partially or totally annul
a proclamation or suspend the effects of a proclamation without notice and hearing. 9
In this case, the public respondent nullified the proclamation of the petitioners and
ousted them from their office as members of the Sangguniang Bayan of Palimbang,
based solely on the recommendations of its law department and of Commissioner
Sadain, and on the memoranda of its officers. The petitioners were not accorded a
chance to be heard on the said recommendations and the memorandum of Regional
Election Director Clarita Callar, certification of Celia Romero, and certification of Election
Officer Malic Sansarona dated September 12, 2001 before it issued the assailed
resolution.
The conclusion of the public respondent that the basis of the petitioners’ proclamation
was a fictitious and falsified document was grounded, inter alia, on a "confidential
certification" of Election Officer Malic Sansarona dated September 12, 2001. 10
However, it appears that a certification 11 was earlier issued by the same election
officer on June 25, 2001, stating that the petitioners whose names were listed as
winning candidates as Sangguniang Bayan members in the COCVP (C.E. Form No. 25)
No. 8031108, the very certificate declared by the public respondent in its Resolution
No. 4615 as fictitious and falsified document, won in the elections.
In the case of Caruncho III v. Commission on Elections, 12 this Court has held that due
process in quasi-judicial proceedings before the COMELEC requires due notice and
hearing. The proclamation of a winning candidate cannot be annulled if he has not been
notified of any motion to set aside his proclamation. This Court also ruled in Sandoval
v. Commission on Elections 13 that: chanrob1es virtual 1aw library
. . . Although the COMELEC is clothed with jurisdiction over the subject matter and
issue of SPC No. 98-143 and SPC No. 98-206, we find the exercise of its jurisdiction
tainted with illegality. We hold that its order to set aside the proclamation of petitioner
is invalid for having been rendered without due process of law. Procedural due process
demands prior notice and hearing. Then after the hearing, it is also necessary that the
tribunal show substantial evidence to support its ruling. In other words, due process
requires that a party be given an opportunity to adduce his evidence to support his side
of the case and that the evidence should be considered in the adjudication of the case.
The facts show that COMELEC set aside the proclamation of petitioner without the
benefit of prior notice and hearing and it rendered the questioned order based solely on
private respondent’s allegations. We held in Bince, Jr. v. COMELEC: chanrob1es virtual 1aw library
Petitioner cannot be deprived of his office without due process of law. Although public
office is not property under Section 1 of the Bill of Rights of the Constitution, and one
cannot acquire a vested right to public office, it is, nevertheless, a protected right. Due
process in proceedings before the COMELEC, exercising its quasi-judicial functions,
requires due notice and hearing, among others. Thus, although the COMELEC
possesses, in appropriate cases, the power to annul or suspend the proclamation of any
candidate, We had ruled in Farinas v. Commission on Elections, Reyes v. Commission
on Elections and Gallardo v. Commission on Elections that the COMELEC is without
power to partially or totally annul a proclamation or suspend the effects of a
proclamation without notice and hearing.
The public respondent’s reliance on the ruling of this Court in Utto v. Commission on
Elections 14 is misplaced. The Court, in that case, held that the twin-requirement of
notice and hearing in an annulment of proclamation is not applicable because of the
illegality of petitioner’s proclamation. 15 The factual circumstances in the instant
petition are far different from those obtaining in Utto. In the Utto case, a notice of
appeal was filed questioning the ruling of the board of canvassers but, the latter
proceeded in proclaiming Utto as the winning candidate. This made the proclamation
illegal. In the present case, nobody questioned the petitioners’ proclamation.
We rule that the petition in this case was not prematurely filed. Generally, a motion for
reconsideration is a pre-requisite to the viability of a special civil action for certiorari.
However, there are exceptions to the rule. The aggrieved party is not obliged to first file
a motion for reconsideration of the assailed resolution before filing a petition under Rule
65 of the Rules of Court, as amended where, as in this case, (1) the question is purely
legal, (2) judicial intervention is urgent; (3) its application may cause great and
irreparable damage; and (4) the controverted acts violate due process. 16
The private respondents cannot invoke Section 242 of the Omnibus Election Code to
fortify their cause, because the said law specifically refers to pre-proclamation
controversies, thus: chanrob1es virtua1 1aw 1ibrary
Sec. 242. Commission’s exclusive jurisdiction of all pre-proclamation controversies. —

The Commission shall have exclusive jurisdiction of all pre-proclamation controversies.
It may motu proprio or upon written petition, and after due notice and hearing, order
the partial or total suspension of the proclamation of any candidate-elect or annul
partially or totally any proclamation, if one has been made, as the evidence shall
warrant in accordance with the succeeding section. 17
Even the fact that the public respondent initiated the proceedings for the partial or total
annulment of an illegal proclamation would not dispense with the requirements of
notice and hearing. This was made clear in Sandoval v. Commission on Elections: 18
Citing Section 242 of the Omnibus Election Code, private respondent argues that the
COMELEC is authorized to annul an illegal proclamation even without notice and hearing
because the law states that it may motu proprio order a partial or total suspension of
the proclamation of any candidate-elect or annul partially or totally any proclamation, if
one has been made . . .
The phrase "motu proprio" does not refer to the annulment of proclamation but to the
manner of initiating the proceedings to annul a proclamation made by the board of
canvassers. The law provides two ways by which annulment proceedings may be
initiated. It may be at the own initiative of the COMELEC (motu proprio) or by written
petition. In either case, notice and hearing is required. This is clear from the language
of the law. 19
IN THE LIGHT OF THE FOREGOING, the petition is GRANTED. The assailed Resolution
No. 4615 of the public respondent COMELEC en banc dated November 6, 2001, is
hereby REVERSED and SET ASIDE.
SO ORDERED. chanrob1es virtua1 1aw 1ibrary
Davide, Jr., C.J., Bellosillo, Puno, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio,

Austria-Martines, Corona, Carpio Morales, Azcuna and Tinga, JJ., concur.
Vitug, J., concurs in the result.
Ynares-Santiago, J., is on leave.
G.R. No. 164978 October 13, 2005
AQUILINO Q. PIMENTEL, JR., EDGARDO J. ANGARA, JUAN PONCE ENRILE, LUISA P.

EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO M. LACSON, ALFREDO S. LIM,
JAMBY A.S. MADRIGAL, and SERGIO R. OSMEÑA III, Petitioners
vs.
EXEC. SECRETARY EDUARDO R. ERMITA, FLORENCIO B. ABAD, AVELINO J. CRUZ, JR.,
MICHAEL T. DEFENSOR, JOSEPH H. DURANO, RAUL M. GONZALEZ, ALBERTO G. ROMULO,
RENE C. VILLA, and ARTHUR C. YAP, Respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for certiorari and prohibition1 with a prayer for the issuance of a writ of preliminary
injunction to declare unconstitutional the appointments issued by President Gloria Macapagal-Arroyo
("President Arroyo") through Executive Secretary Eduardo R. Ermita ("Secretary Ermita") to
Florencio B. Abad, Avelino J. Cruz, Jr., Michael T. Defensor, Joseph H. Durano, Raul M. Gonzalez,
Alberto G. Romulo, Rene C. Villa, and Arthur C. Yap ("respondents") as acting secretaries of their
respective departments. The petition also seeks to prohibit respondents from performing the duties
of department secretaries.
Antecedent Facts
The Senate and the House of Representatives ("Congress") commenced their regular session on 26
July 2004. The Commission on Appointments, composed of Senators and Representatives, was
constituted on 25 August 2004.
Meanwhile, President Arroyo issued appointments2 to respondents as acting secretaries of their

respective departments.
Appointee Department Date of Appointment

Arthur C. Yap Agriculture 15 August 2004
Alberto G. Romulo Foreign Affairs 23 August 2004
Raul M. Gonzalez Justice 23 August 2004
Florencio B. Abad Education 23 August 2004
Avelino J. Cruz, Jr. National Defense 23 August 2004
Rene C. Villa Agrarian Reform 23 August 2004
Joseph H. Durano Tourism 23 August 2004
Michael T. Defensor Environment and Natural Resources 23 August 2004
The appointment papers are uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed ACTING SECRETARY,
DEPARTMENT OF (appropriate department) vice (name of person replaced).
By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the
office, furnishing this Office and the Civil Service Commission with copies of your Oath of Office.
(signed)
Gloria Arroyo
Respondents took their oath of office and assumed duties as acting secretaries.
On 8 September 2004, Aquilino Q. Pimentel, Jr. ("Senator Pimentel"), Edgardo J. Angara ("Senator
Angara"), Juan Ponce Enrile ("Senator Enrile"), Luisa P. Ejercito-Estrada ("Senator Ejercito-
Estrada"), Jinggoy E. Estrada ("Senator Estrada"), Panfilo M. Lacson ("Senator Lacson"), Alfredo S.
Lim ("Senator Lim"), Jamby A.S. Madrigal ("Senator Madrigal"), and Sergio R. Osmeña, III ("Senator
Osmeña") ("petitioners") filed the present petition as Senators of the Republic of the Philippines.
Congress adjourned on 22 September 2004. On 23 September 2004, President Arroyo issued ad

interim appointments3 to respondents as secretaries of the departments to which they were
previously appointed in an acting capacity. The appointment papers are uniformly worded as follows:
Sir:
Pursuant to the provisions of existing laws, you are hereby appointed SECRETARY [AD INTERIM],
DEPARTMENT OF (appropriate department).
By virtue hereof, you may qualify and enter upon the performance of the duties and functions of the
office, furnishing this Office and the Civil Service Commission with copies of your oath of office.
(signed)
Gloria Arroyo
Issue
The petition questions the constitutionality of President Arroyo’s appointment of respondents as

acting secretaries without the consent of the Commission on Appointments while Congress is in
session.
The petition has no merit.
Preliminary Matters
On the Mootness of the Petition
The Solicitor General argues that the petition is moot because President Arroyo had extended to
respondents ad interim appointments on 23 September 2004 immediately after the recess of
Congress.
As a rule, the writ of prohibition will not lie to enjoin acts already done.4 However, as an exception to
the rule on mootness, courts will decide a question otherwise moot if it is capable of repetition yet
evading review.5
In the present case, the mootness of the petition does not bar its resolution. The question of the
constitutionality of the President’s appointment of department secretaries in an acting capacity while
Congress is in session will arise in every such appointment.
On the Nature of the Power to Appoint
The power to appoint is essentially executive in nature, and the legislature may not interfere with the
exercise of this executive power except in those instances when the Constitution expressly allows it
to interfere.6 Limitations on the executive power to appoint are construed strictly against the
legislature.7 The scope of the legislature’s interference in the executive’s power to appoint is limited
to the power to prescribe the qualifications to an appointive office. Congress cannot appoint a
person to an office in the guise of prescribing qualifications to that office. Neither may Congress
impose on the President the duty to appoint any particular person to an office.8
However, even if the Commission on Appointments is composed of members of Congress, the

exercise of its powers is executive and not legislative. The Commission on Appointments does not
legislate when it exercises its power to give or withhold consent to presidential appointments. Thus:
xxx The Commission on Appointments is a creature of the Constitution. Although its membership is
confined to members of Congress, said Commission is independent of Congress. The powers of the
Commission do not come from Congress, but emanate directly from the Constitution. Hence, it is not
an agent of Congress. In fact, the functions of the Commissioner are purely executive in nature. xxx9
On Petitioners’ Standing
The Solicitor General states that the present petition is a quo warranto proceeding because, with the
exception of Secretary Ermita, petitioners effectively seek to oust respondents for unlawfully
exercising the powers of department secretaries. The Solicitor General further states that petitioners
may not claim standing as Senators because no power of the Commission on Appointments has
been "infringed upon or violated by the President. xxx If at all, the Commission on Appointments as a
body (rather than individual members of the Congress) may possess standing in this case."10
Petitioners, on the other hand, state that the Court can exercise its certiorari jurisdiction over
unconstitutional acts of the President.11 Petitioners further contend that they possess standing
because President Arroyo’s appointment of department secretaries in an acting capacity while
Congress is in session impairs the powers of Congress. Petitioners cite Sanlakas v. Executive
Secretary12 as basis, thus:
To the extent that the powers of Congress are impaired, so is the power of each member thereof,
since his office confers a right to participate in the exercise of the powers of that institution.
An act of the Executive which injures the institution of Congress causes a derivative but nonetheless
substantial injury, which can be questioned by a member of Congress. In such a case, any member
of Congress can have a resort to the courts.
Considering the independence of the Commission on Appointments from Congress, it is error for
petitioners to claim standing in the present case as members of Congress. President Arroyo’s
issuance of acting appointments while Congress is in session impairs no power of Congress. Among
the petitioners, only the following are members of the Commission on Appointments of the 13th
Congress: Senator Enrile as Minority Floor Leader, Senator Lacson as Assistant Minority Floor
Leader, and Senator Angara, Senator Ejercito-Estrada, and Senator Osmeña as members.
Thus, on the impairment of the prerogatives of members of the Commission on Appointments, only
Senators Enrile, Lacson, Angara, Ejercito-Estrada, and Osmeña have standing in the present
petition. This is in contrast to Senators Pimentel, Estrada, Lim, and Madrigal, who, though vigilant in
protecting their perceived prerogatives as members of Congress, possess no standing in the present
petition.
The Constitutionality of President Arroyo’s Issuance
of Appointments to Respondents as Acting Secretaries
Petitioners contend that President Arroyo should not have appointed respondents as acting
secretaries because "in case of a vacancy in the Office of a Secretary, it is only an Undersecretary
who can be designated as Acting Secretary."13 Petitioners base their argument on Section 10,
Chapter 2, Book IV of Executive Order No. 292 ("EO 292"),14 which enumerates the powers and
duties of the undersecretary. Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the Undersecretary. - The Undersecretary shall:

xxx
(5) Temporarily discharge the duties of the Secretary in the latter’s absence or inability to discharge
his duties for any cause or in case of vacancy of the said office, unless otherwise provided by law.
Where there are more than one Undersecretary, the Secretary shall allocate the foregoing powers
and duties among them. The President shall likewise make the temporary designation of Acting
Secretary from among them; and
xxx
Petitioners further assert that "while Congress is in session, there can be no appointments, whether
regular or acting, to a vacant position of an office needing confirmation by the Commission on
Appointments, without first having obtained its consent."15
In sharp contrast, respondents maintain that the President can issue appointments in an acting
capacity to department secretaries without the consent of the Commission on Appointments even
while Congress is in session. Respondents point to Section 16, Article VII of the 1987 Constitution.
Section 16 reads:
SEC. 16. The President shall nominate and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments, ambassadors, other public ministers and consuls,
or officers of the armed forces from the rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint. The Congress may, by law, vest the appointment of other officers lower
in rank in the President alone, in the courts, or in the heads of departments, agencies, commissions,
or boards.
The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until disapproval by
the Commission on Appointments or until the next adjournment of the Congress.
Respondents also rely on EO 292, which devotes a chapter to the President’s power of appointment.
Sections 16 and 17, Chapter 5, Title I, Book III of EO 292 read:
SEC. 16. Power of Appointment. — The President shall exercise the power to appoint such
officials as provided for in the Constitution and laws.
SEC. 17. Power to Issue Temporary Designation. — (1) The President may temporarily designate
an officer already in the government service or any other competent person to perform the
functions of an office in the executive branch, appointment to which is vested in him by law,
when: (a) the officer regularly appointed to the office is unable to perform his duties by
reason of illness, absence or any other cause; or (b) there exists a vacancy[.]
(2) The person designated shall receive the compensation attached to the position, unless he is
already in the government service in which case he shall receive only such additional compensation
as, with his existing salary, shall not exceed the salary authorized by law for the position filled. The
compensation hereby authorized shall be paid out of the funds appropriated for the office or agency
concerned.
(3) In no case shall a temporary designation exceed one (1) year. (Emphasis supplied)
Petitioners and respondents maintain two diametrically opposed lines of thought. Petitioners assert
that the President cannot issue appointments in an acting capacity to department secretaries while
Congress is in session because the law does not give the President such power. In contrast,
respondents insist that the President can issue such appointments because no law prohibits such
appointments.
The essence of an appointment in an acting capacity is its temporary nature. It is a stop-gap

measure intended to fill an office for a limited time until the appointment of a permanent occupant to
the office.16 In case of vacancy in an office occupied by an alter ego of the President, such as the
office of a department secretary, the President must necessarily appoint an alter ego of her choice
as acting secretary before the permanent appointee of her choice could assume office.
Congress, through a law, cannot impose on the President the obligation to appoint automatically the
undersecretary as her temporary alter ego. An alter ego, whether temporary or permanent, holds a
position of great trust and confidence. Congress, in the guise of prescribing qualifications to an
office, cannot impose on the President who her alter ego should be.
The office of a department secretary may become vacant while Congress is in session. Since a
department secretary is the alter ego of the President, the acting appointee to the office must
necessarily have the President’s confidence. Thus, by the very nature of the office of a department
secretary, the President must appoint in an acting capacity a person of her choice even while
Congress is in session. That person may or may not be the permanent appointee, but practical
reasons may make it expedient that the acting appointee will also be the permanent appointee.
The law expressly allows the President to make such acting appointment. Section 17, Chapter 5,
Title I, Book III of EO 292 states that "[t]he President may temporarily designate an officer already in
the government service or any other competent person to perform the functions of an office in the
executive branch." Thus, the President may even appoint in an acting capacity a person not yet in
the government service, as long as the President deems that person competent.
Petitioners assert that Section 17 does not apply to appointments vested in the President by the
Constitution, because it only applies to appointments vested in the President by law. Petitioners
forget that Congress is not the only source of law. "Law" refers to the Constitution, statutes or acts of
Congress, municipal ordinances, implementing rules issued pursuant to law, and judicial decisions.17
Finally, petitioners claim that the issuance of appointments in an acting capacity is susceptible to
abuse. Petitioners fail to consider that acting appointments cannot exceed one year as expressly
provided in Section 17(3), Chapter 5, Title I, Book III of EO 292. The law has incorporated this
safeguard to prevent abuses, like the use of acting appointments as a way to circumvent
confirmation by the Commission on Appointments.
In distinguishing ad interim appointments from appointments in an acting capacity, a noted textbook

writer on constitutional law has observed:
Ad-interim appointments must be distinguished from appointments in an acting capacity. Both of

them are effective upon acceptance. But ad-interim appointments are extended only during a recess
of Congress, whereas acting appointments may be extended any time there is a vacancy. Moreover
ad-interim appointments are submitted to the Commission on Appointments for confirmation or
rejection; acting appointments are not submitted to the Commission on Appointments. Acting
appointments are a way of temporarily filling important offices but, if abused, they can also be a way
of circumventing the need for confirmation by the Commission on Appointments.18
However, we find no abuse in the present case. The absence of abuse is readily apparent from
President Arroyo’s issuance of ad interim appointments to respondents immediately upon the recess
of Congress, way before the lapse of one year.
WHEREFORE, we DISMISS the present petition for certiorari and prohibition.
SO ORDERED.
ANTONIO T. CARPIO
G.R. No. 147387 December 10, 2003
RODOLFO C. FARIÑAS, MANUEL M. GARCIA, FRANCIS G. ESCUDERO, and AGAPITO A.

AQUINO, AS MEMBERS OF THE HOUSE OF REPRESENTATIVES AND ALSO AS
TAXPAYERS, IN THEIR OWN BEHALF AND IN REPRESENTATION OF THE MEMBERS OF THE
MINORITY IN THE HOUSE OF REPRESENTATIVES, petitioners,
vs.
THE EXECUTIVE SECRETARY, COMMISSION ON ELECTIONS, HON. FELICIANO R.
BELMONTE, JR., SECRETARY OF THE INTERIOR AND LOCAL GOVERNMENT, SECRETARY
OF THE SENATE, AND SECRETARY GENERAL OF THE HOUSE OF
REPRESENTATIVES, respondents.
x-----------------------x
G.R. No. 152161
CONG. GERRY A. SALAPUDDIN, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
CALLEJO, SR., J.:
Before the Court are two Petitions under Rule 65 of the Rules of Court, as amended, seeking to
declare as unconstitutional Section 14 of Republic Act No. 9006 (The Fair Election Act), insofar as it
expressly repeals Section 67 of Batas Pambansa Blg. 881 (The Omnibus Election Code) which
provides:
SEC. 67. Candidates holding elective office. – Any elective official, whether national or local, running
for any office other than the one which he is holding in a permanent capacity, except for President
and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his
certificate of candidacy.
The petition for certiorari and prohibition in G.R. No. 147387 was filed by Rodolfo C. Fariñas, Manuel
M. Garcia, Francis G. Escudero and Agapito A. Aquino. At the time of filing of the petition, the
petitioners were members of the minority bloc in the House of Representatives. Impleaded as
respondents are: the Executive Secretary, then Speaker of the House of Representatives Feliciano
R. Belmonte, Jr., the Commission on Elections, the Secretary of the Department of the Interior and
Local Government (DILG), the Secretary of the Senate and the Secretary General of the House of
Representatives.
The petition for prohibition in G.R. No. 152161 was filed by Gerry A. Salapuddin, then also a
member of the House of Representatives. Impleaded as respondent is the COMELEC.
Legislative History of Republic Act No. 9006
Rep. Act No. 9006, entitled "An Act to Enhance the Holding of Free, Orderly, Honest, Peaceful and
Credible Elections through Fair Election Practices," is a consolidation of the following bills originating
from the House of Representatives and the Senate, respectively:
House Bill (HB) No. 9000 entitled "AN ACT ALLOWING THE USE OF MASS MEDIA FOR
ELECTION PROPAGANDA, AMENDING FOR THE PURPOSE BATAS PAMBANSA BILANG 881,
OTHERWISE KNOWN AS THE ‘OMNIBUS ELECTION CODE,’ AS AMENDED, AND FOR OTHER
PURPOSES;" 1
Senate Bill (SB) No. 1742 entitled "AN ACT TO ENHANCE THE HOLDING OF FREE, ORDERLY,
HONEST, PEACEFUL, AND CREDIBLE ELECTIONS THROUGH FAIR ELECTION PRACTICES." 2
A Bicameral Conference Committee, composed of eight members of the Senate and sixteen (16)
3
members of the House of Representatives, was formed to reconcile the conflicting provisions of the
4
House and Senate versions of the bill.
On November 29, 2000, the Bicameral Conference Committee submitted its Report, signed by its
5
members, recommending the approval of the bill as reconciled and approved by the conferees.
During the plenary session of the House of Representatives on February 5, 2001, Rep. Jacinto V.
Paras proposed an amendment to the Bicameral Conference Committee Report. Rep. Didagen P.
Dilangalen raised a point of order commenting that the House could no longer submit an amendment
thereto. Rep. Sergio A.F. Apostol thereupon moved that the House return the report to the Bicameral
Conference Committee in view of the proposed amendment thereto. Rep. Dilangalen expressed his
objection to the proposal. However, upon viva voce voting, the majority of the House approved the
return of the report to the Bicameral Conference Committee for proper action. 6
In view of the proposed amendment, the House of Representatives elected anew its conferees to 7
the Bicameral Conference Committee. Then again, for unclear reasons, upon the motion of Rep.
8
Ignacio R. Bunye, the House elected another set of conferees to the Bicameral Conference
9
Committee. 10
On February 7, 2001, during the plenary session of the House of Representatives, Rep. Bunye
moved that the House consider the Bicameral Conference Committee Report on the contrasting
provisions of HB No. 9000 and SB No. 1742. Rep. Dilangalen observed that the report had been
recommitted to the Bicameral Conference Committee. The Chair responded that the Bicameral
Conference Report was a new one, and was a result of the reconvening of a new Bicameral
Conference Committee. Rep. Dilangalen then asked that he be given time to examine the new
report. Upon motion of Rep. Apostol, the House deferred the approval of the report until the other
members were given a copy thereof. 11
After taking up other pending matters, the House proceeded to vote on the Bicameral Conference
Committee Report on the disagreeing provisions of HB No. 9000 and SB No. 1742. The House
approved the report with 125 affirmative votes, 3 negative votes and no abstention. In explaining
their negative votes, Reps. Fariñas and Garcia expressed their belief that Section 14 thereof was a
rider. Even Rep. Escudero, who voted in the affirmative, expressed his doubts on the
constitutionality of Section 14. Prior to casting his vote, Rep. Dilangalen observed that no senator
signed the Bicameral Conference Committee Report and asked if this procedure was regular. 12
On the same day, the Senate likewise approved the Bicameral Conference Committee Report on the
contrasting provisions of SB No. 1742 and HB No. 9000.
Thereafter, Rep. Act No. 9006 was duly signed by then Senate President Aquilino Pimentel, Jr. and
then Speaker of the House of Representatives Feliciano R. Belmonte, Jr. and was duly certified by
the Secretary of the Senate Lutgardo B. Barbo and the Secretary General of the House of
Representatives Robert P. Nazareno as "the consolidation of House Bill No. 9000 and Senate Bill
No. 1742," and "finally passed by both Houses on February 7, 2001."
President Gloria Macapagal-Arroyo signed Rep. Act No. 9006 into law on February 12, 2001.
The Petitioners’ Case
The petitioners now come to the Court alleging in the main that Section 14 of Rep. Act No. 9006,
insofar as it repeals Section 67 of the Omnibus Election Code, is unconstitutional for being in
violation of Section 26(1), Article VI of the Constitution, requiring every law to have only one subject
which should be expressed in its title.
According to the petitioners, the inclusion of Section 14 repealing Section 67 of the Omnibus
Election Code in Rep. Act No. 9006 constitutes a proscribed rider. They point out the dissimilarity in
the subject matter of Rep. Act No. 9006, on the one hand, and Section 67 of the Omnibus Election
Code, on the other. Rep. Act No. 9006 primarily deals with the lifting of the ban on the use of media
for election propaganda and the elimination of unfair election practices, while Section 67 of the
Omnibus Election Code imposes a limitation on elective officials who run for an office other than the
one they are holding in a permanent capacity by considering them as ipso facto resigned therefrom
upon filing of the certificate of candidacy. The repeal of Section 67 of the Omnibus Election Code is
thus not embraced in the title, nor germane to the subject matter of Rep. Act No. 9006.
The petitioners also assert that Section 14 of Rep. Act No. 9006 violates the equal protection clause
of the Constitution because it repeals Section 67 only of the Omnibus Election Code, leaving intact
Section 66 thereof which imposes a similar limitation to appointive officials, thus:
SEC. 66. Candidates holding appointive office or position. – Any person holding a public appointive
office or position, including active members of the Armed Forces of the Philippines, and officers and
employees in government-owned or controlled corporations, shall be considered ipso facto resigned
from his office upon the filing of his certificate of candidacy.
They contend that Section 14 of Rep. Act No. 9006 discriminates against appointive officials. By the
repeal of Section 67, an elective official who runs for office other than the one which he is holding is
no longer considered ipso facto resigned therefrom upon filing his certificate of candidacy. Elective
officials continue in public office even as they campaign for reelection or election for another elective
position. On the other hand, Section 66 has been retained; thus, the limitation on appointive officials
remains - they are still considered ipso facto resigned from their offices upon the filing of their
certificates of candidacy.
The petitioners assert that Rep. Act No. 9006 is null and void in its entirety as irregularities attended
its enactment into law. The law, not only Section 14 thereof, should be declared null and void. Even
Section 16 of the law which provides that "[t]his Act shall take effect upon its approval" is a violation
of the due process clause of the Constitution, as well as jurisprudence, which require publication of
the law before it becomes effective.
Finally, the petitioners maintain that Section 67 of the Omnibus Election Code is a good law; hence,
should not have been repealed. The petitioners cited the ruling of the Court in Dimaporo v. Mitra,
Jr., that Section 67 of the Omnibus Election Code is based on the constitutional mandate on the
13
"Accountability of Public Officers:"

14
Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable
to the people, serve them with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives.
Consequently, the respondents Speaker and Secretary General of the House of Representatives
acted with grave abuse of discretion amounting to excess or lack of jurisdiction for not considering
those members of the House who ran for a seat in the Senate during the May 14, 2001 elections as
ipso facto resigned therefrom, upon the filing of their respective certificates of candidacy.
The Respondents’ Arguments
For their part, the respondents, through the Office of the Solicitor General, urge this Court to dismiss
the petitions contending, preliminarily, that the petitioners have no legal standing to institute the
present suit. Except for the fact that their negative votes were overruled by the majority of the
members of the House of Representatives, the petitioners have not shown that they have suffered
harm as a result of the passage of Rep. Act No. 9006. Neither do petitioners have any interest as
taxpayers since the assailed statute does not involve the exercise by Congress of its taxing or
spending power.
Invoking the "enrolled bill" doctrine, the respondents refute the petitioners’ allegations that
"irregularities" attended the enactment of Rep. Act No. 9006. The signatures of the Senate President
and the Speaker of the House, appearing on the bill and the certification signed by the respective
Secretaries of both houses of Congress, constitute proof beyond cavil that the bill was duly enacted
into law.
The respondents contend that Section 14 of Rep. Act No. 9006, as it repeals Section 67 of the
Omnibus Election Code, is not a proscribed rider nor does it violate Section 26(1) of Article VI of the
Constitution. The title of Rep. Act No. 9006, "An Act to Enhance the Holding of Free, Orderly,
Honest, Peaceful and Credible Elections through Fair Election Practices," is so broad that it
encompasses all the processes involved in an election exercise, including the filing of certificates of
candidacy by elective officials.
They argue that the repeal of Section 67 is germane to the general subject of Rep. Act No. 9006 as
expressed in its title as it eliminates the effect of prematurely terminating the term of an elective
official by his filing of a certificate of candidacy for an office other than the one which he is
permanently holding, such that he is no longer considered ipso facto resigned therefrom. The
legislature, by including the repeal of Section 67 of the Omnibus Election Code in Rep. Act No.
9006, has deemed it fit to remove the "unfairness" of considering an elective official ipso facto
resigned from his office upon the filing of his certificate of candidacy for another elective office. With
the repeal of Section 67, all elective officials are now placed on equal footing as they are allowed to
finish their respective terms even if they run for any office, whether the presidency, vice-presidency
or other elective positions, other than the one they are holding in a permanent capacity.
The respondents assert that the repeal of Section 67 of the Omnibus Election Code need not be
expressly stated in the title of Rep. Act No. 9006 as the legislature is not required to make the title of
the act a complete index of its contents. It must be deemed sufficient that the title be comprehensive
enough reasonably to include the general subject which the statute seeks to effect without
expressing each and every means necessary for its accomplishment. Section 26(1) of Article VI of
the Constitution merely calls for all the parts of an act relating to its subject to find expression in its
title. Mere details need not be set forth.
According to the respondents, Section 14 of Rep. Act No. 9006, insofar as it repeals Section 67,
leaving Section 66 of the Omnibus Election Code intact and effective, does not violate the equal
protection clause of the Constitution. Section 67 pertains to elective officials while Section 66
pertains to appointive officials. A substantial distinction exists between these two sets of officials;
elective officials occupy their office by virtue of their mandate based upon the popular will, while the
appointive officials are not elected by popular will. The latter cannot, therefore, be similarly treated
as the former. Equal protection simply requires that all persons or things similarly situated are
treated alike, both as to rights conferred and responsibilities imposed.
Further, Section 16, or the "Effectivity" clause, of Rep. Act No. 9006 does not run afoul of the due
process clause of the Constitution as it does not entail any arbitrary deprivation of life, liberty and
property. Specifically, the section providing for penalties in cases of violations thereof presume that
the formalities of the law would be observed, i.e., charges would first be filed, and the accused would
be entitled to a hearing before judgment is rendered by a court having jurisdiction. In any case, the
issue about lack of due process is premature as no one has, as yet, been charged with violation of
Rep. Act No. 9006.
Finally, the respondents submit that the respondents Speaker and Secretary General of the House
of Representatives did not commit grave abuse of discretion in not excluding from the Rolls those
members thereof who ran for the Senate during the May 14, 2001 elections. These respondents
merely complied with Rep. Act No. 9006, which enjoys the presumption of validity until declared
otherwise by the Court.
Before resolving the petitions on their merits, the Court shall first rule on the procedural issue raised
by the respondents, i.e., whether the petitioners have the legal standing or locus standi to file the
petitions at bar.
The petitions were filed by the petitioners in their capacities as members of the House of
Representatives, and as taxpayers and registered voters.
Generally, a party who impugns the validity of a statute must have a personal and substantial
interest in the case such that he has sustained, or will sustain, direct injury as a result of its
enforcement. The rationale for requiring a party who challenges the constitutionality of a statute to
15
allege such a personal stake in the outcome of the controversy is "to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions." 16
However, being merely a matter of procedure, this Court, in several cases involving issues of
"overarching significance to our society," had adopted a liberal stance on standing. Thus, in Tatad v.
17
Secretary of the Department of Energy, this Court brushed aside the procedural requirement of
18
standing, took cognizance of, and subsequently granted, the petitions separately filed by then
Senator Francisco Tatad and several members of the House of Representatives assailing the
constitutionality of Rep. Act No. 8180 (An Act Deregulating the Downstream Oil Industry and For
Other Purposes).
The Court likewise took cognizance of the petition filed by then members of the House of
Representatives which impugned as unconstitutional the validity of a provision of Rep. Act No. 6734
(Organic Act for the Autonomous Region in Muslim Mindanao) in Chiongbian v. Orbos. Similarly, the
19
Court took cognizance of the petition filed by then members of the Senate, joined by other
petitioners, which challenged the validity of Rep. Act No. 7716 (Expanded Value Added Tax Law) in
Tolentino v. Secretary of Finance. 20
Members of Congress, such as the petitioners, were likewise allowed by this Court to challenge the
validity of acts, decisions, rulings, or orders of various government agencies or instrumentalities in
Del Mar v. Philippine Amusement and Gaming Corporation, Kilosbayan, Inc. v. Guingona,
21
Jr., Philippine Constitution Association v. Enriquez, Albano v. Reyes, and Bagatsing v. Committee
22 23 24
on Privatization.
25
Certainly, the principal issue posed by the petitions, i.e., whether Section 67 of the Omnibus Election
Code, which this Court had declared in Dimaporo as deriving its existence from the constitutional
26
provision on accountability of public officers, has been validly repealed by Section 14 of Rep. Act No.
9006, is one of "overarching significance" that justifies this Court’s adoption of a liberal stance vis-à-
vis the procedural matter on standing. Moreover, with the national elections barely seven months
away, it behooves the Court to confront the issue now and resolve the same forthrightly. The
following pronouncement of the Court is quite apropos:
... All await the decision of this Court on the constitutional question. Considering, therefore, the
importance which the instant case has assumed and to prevent multiplicity of suits, strong reasons
of public policy demand that [its] constitutionality . . . be now resolved. It may likewise be added that
the exceptional character of the situation that confronts us, the paramount public interest, and the
undeniable necessity for a ruling, the national elections beings barely six months away, reinforce our
stand. 27
Every statute is presumed valid. The presumption is that the legislature intended to enact a valid,
28
sensible and just law and one which operates no further than may be necessary to effectuate the
specific purpose of the law.29
It is equally well-established, however, that the courts, as guardians of the Constitution, have the
inherent authority to determine whether a statute enacted by the legislature transcends the limit
imposed by the fundamental law. And where the acts of the other branches of government run afoul
30
of the Constitution, it is the judiciary’s solemn and sacred duty to nullify the same.
31
Proceeding from these guideposts, the Court shall now resolve the substantial issues raised by the
petitions.
Section 14 of Rep. Act No. 9006 Is Not a Rider 32

At the core of the controversy is Section 14, the repealing clause of Rep. Act No. 9006, which
provides:
Sec. 14. Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg. 881) and
Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the first
proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All
laws, presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent
with the provisions of this Act are hereby repealed or modified or amended accordingly.
The repealed provision, Section 67 of the Omnibus Election Code, quoted earlier, reads:
SEC. 67. Candidates holding elective office. – Any elective official, whether national or local, running
for any office other than the one which he is holding in a permanent capacity, except for President
and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his
certificate of candidacy.
Section 26(1), Article VI of the Constitution provides:
SEC. 26 (1). Every bill passed by the Congress shall embrace only one subject which shall be
expressed in the title thereof.
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.
33
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.
34
The title of Rep. Act No. 9006 reads: "An Act to Enhance the Holding of Free, Orderly, Honest,
Peaceful and Credible Elections through Fair Election Practices." Section 2 of the law provides not
only the declaration of principles but also the objectives thereof:
Sec. 2. Declaration of Principles. – The State shall, during the election period, supervise or regulate
the enjoyment or utilization of all franchises or permits for the operation of media of communication
or information to guarantee or ensure equal opportunity for public service, including access to media
time and space, and the equitable right to reply, for public information campaigns and fora among
candidates and assure free, orderly, honest, peaceful and credible elections.
The State shall ensure that bona fide candidates for any public office shall be free from any form of
harassment and discrimination. 35
The Court is convinced that the title and the objectives of Rep. Act No. 9006 are comprehensive
enough to include the repeal of Section 67 of the Omnibus Election Code within its contemplation.
To require that the said repeal of Section 67 of the Code be expressed in the title is to insist that the
title be a complete index of its content.
36
The purported dissimilarity of Section 67 of the Omnibus Election Code, which imposes a limitation
on elective officials who run for an office other than the one they are holding, to the other provisions
of Rep. Act No. 9006, which deal with the lifting of the ban on the use of media for election
propaganda, does not violate the "one subject-one title" rule. 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.37
The deliberations of the Bicameral Conference Committee on the particular matter are particularly
instructive:
SEN. LEGARDA-LEVISTE:
Yes, Mr. Chairman, I just wanted to clarify.
So all we’re looking for now is an appropriate title to make it broader so that it would cover this
provision [referring to the repeal of Section 67 of the Omnibus Election Code], is that correct? That’s
all. Because I believe ...
THE CHAIRMAN (REP. SYJUCO):
We are looking for an appropriate coverage which will result in the nomenclature or title.
Because I really do not believe that it is out of place. I think that even with the term "fair election
practice," it really covers it, because as expressed by Senator Roco, those conditions inserted earlier
seemed unfair and it is an election practice and, therefore, I think, I’m very comfortable with the title
"Fair Election Practice" so that we can get over with these things so that we don’t come back again
until we find the title. I mean, it’s one provision which I think is fair for everybody. It may seem like a
limitation but this limitation actually provides for fairness in election practices as the title implies.
Yes.
So I would want to beg the House contingent, let’s get it over with. To me, ha, it’s not a very touchy
issue. For me, it’s even a very correct provision. I feel very comfortable with it and it was voted in the
Senate, at least, so I would like to appeal to the ... para matapos na, then we come back as a Bicam
just for the title Is that what you’re ...?

It’s not the title per se, it’s the coverage. So if you will just kindly bear with us. I’m happy that there is
already one comfortable senator there among ... several of us were also comfortable with it. But it
would be well that when we rise from this Bicam that we’re all comfortable with it.
THE CHAIRMAN (SEN. ROCO):
Yes. Anyway, let’s listen to Congressman Marcos.
REP. MARCOS:
Mr. Chairman, may I just make the observation that although it is true that the bulk of provisions
deals with the area of propaganda and political advertising, the complete title is actually one that
indulge full coverage. It says "An Act to enhance the holding of free, orderly, honest ... elections
through fair election practices." But as you said, we will put that aside to discuss later one.
Secondly, I think the Declaration of Principles contained in Section 2, paragraph 2 is perfectly

adequate in that it says that it shall ensure candidates for public office that may be free from any
form of harassment and discrimination.
Surely this provision in Section 67 of the old Election Code of the existing Omnibus Election Code is
a form of harassment or discrimination. And so I think that in the effort at leveling the playing field,
we can cover this and it should not be considered a rider.
I agree, Mr. Chairman. I think the Congresswoman from Ilocos had very clearly put it, that it is
covered in the Declaration of Principles and in the objective of this bill. And therefore, I hope that the
House contingent would agree to this so that we can finish it now. And it expressly provides for fair
election practices because ...
Yeah, I think what is on the table is that we are not disputing this, but we are looking for a title that is
more generic so that then we have less of an objection on constitutionality. I think that’s the theory.
So, there is acceptance of this.
Maybe we should not call it na limitation on elected officials. Maybe we should say the special
provision on elected officials. So how is that? Alam mo ito ...
REP. MARCOS:
I think we just change the Section 1, the short title.
Also, Then we say - - on the short title of the Act, we say ...
REP. MARCOS:
What if we say fair election practices? Maybe that should be changed...

O, sige, fine, fine. Let’s a brainstorm. Equal...
REP. PADILLA:
Mr. Chairman, why don’t we use "An Act rationalizing the holding of free, orderly, honest, peaceful
and credible elections, amending for the purpose Batasang Pambansa known as the Omnibus
Election Code?"
Why don’t we remove "fair" and then this shall be cited as Election Practices Act?"
REP. PICHAY:
That’s not an election practice. That’s a limitation.
Ah - - - ayaw mo iyong practice. O, give me another noun.
REP. MARCOS:
The Fair Election.
O, Fair Election Act.
REP. MACARAMBON:
Nagbi-brainstorm tayo dito, eh. How about if we change the title to enhance the holding of free,
orderly, honest, peaceful and ensure equal opportunity for public service through fair election
practices?
REP. PICHAY:
Fair election practices?
REP. MACARAMBON:
Yeah. To ensure equal opportunity for public service through fair ...
Wala nang practices nga.
REP. PICHAY:
Wala nang practices.
It shall be cited as Fair Election Act.
(Informal discussions)
REP. PICHAY:
Approve na iyan.
Done. So, okay na iyon. The title will be "Fair Election Act."
The rest wala nang problema ano?
VOICES:
Wala na.
REP. MACARAMBON:
Wala na iyong practices?
Wala na, wala na. Mahina tayo sa practice, eh.
O, wala na? We will clean up.
REP. MARCOS:
Title?
The short title, "This Act ..."
You’re back to your No. 21 already.
REP. MARCOS:
The full title, the same?

Iyon na nga. The full title is "An Act to enhance the holding ..." That’s the House version, eh, dahil
pareho, hindi ba? Then the short title "This Act shall be known as the Fair Election Act." 38
The legislators considered Section 67 of the Omnibus Election Code as a form of harassment or
discrimination that had to be done away with and repealed. The executive department found cause
with Congress when the President of the Philippines signed the measure into law. For sure, some
sectors of society and in government may believe that the repeal of Section 67 is bad policy as it
would encourage political adventurism. But policy matters are not the concern of the Court.
Government policy is within the exclusive dominion of the political branches of the government. It is 39
not for this Court to look into the wisdom or propriety of legislative determination. Indeed, whether an
enactment is wise or unwise, whether it is based on sound economic theory, whether it is the best
means to achieve the desired results, whether, in short, the legislative discretion within its prescribed
limits should be exercised in a particular manner are matters for the judgment of the legislature, and
the serious conflict of opinions does not suffice to bring them within the range of judicial
cognizance. Congress is not precluded from repealing Section 67 by the ruling of the Court in
40
Dimaporo v. Mitra upholding the validity of the provision and by its pronouncement in the same case
41
that the provision has a laudable purpose. Over time, Congress may find it imperative to repeal the
law on its belief that the election process is thereby enhanced and the paramount objective of
election laws – the fair, honest and orderly election of truly deserving members of Congress – is
achieved.
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. In this case, it cannot be claimed that the legislators were
42
not apprised of the repeal of Section 67 of the Omnibus Election Code as the same was amply and
comprehensively deliberated upon by the members of the House. In fact, the petitioners, as
members of the House of Representatives, expressed their reservations regarding its validity prior to
casting their votes. Undoubtedly, the legislators were aware of the existence of the provision
repealing Section 67 of the Omnibus Election Code.
Section 14 of Rep. Act No. 9006

Is Not Violative of the Equal
Protection Clause of the Constitution 43
The petitioners’ contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to
elective officials gives undue benefit to such officials as against the appointive ones and violates the
equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions that make
real differences, one class may be treated and regulated differently from the other. The Court has
44
explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is directed or by territory within which it is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within such class and
those who do not. 45
Substantial distinctions clearly exist between elective officials and appointive officials. The former
occupy their office by virtue of the mandate of the electorate. They are elected to an office for a
definite term and may be removed therefrom only upon stringent conditions. On the other hand,
46
appointive officials hold their office by virtue of their designation thereto by an appointing authority.
Some appointive officials hold their office in a permanent capacity and are entitled to security of
tenure while others serve at the pleasure of the appointing authority.
47 48
Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8,
Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987
(Executive Order No. 292), appointive officials, as officers and employees in the civil service, are
strictly prohibited from engaging in any partisan political activity or take part in any election except to
vote. Under the same provision, elective officials, or officers or employees holding political offices,
are obviously expressly allowed to take part in political and electoral activities. 49
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators
deemed it proper to treat these two classes of officials differently with respect to the effect on their
tenure in the office of the filing of the certificates of candidacy for any position other than those
occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom
of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-a-vis
appointive officials, is anchored upon material and significant distinctions and all the persons
belonging under the same classification are similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.
The Enrolled Bill Doctrine

Is Applicable In this Case
Not content with their plea for the nullification of Section 14 of Rep. Act No. 9006, the petitioners
insist that the entire law should be nullified. They contend that irregularities attended the passage of
the said law particularly in the House of Representatives catalogued thus:
a. Creation of two (2) sets of BCC (Bicameral Conference Committee) members by the
House during its session on February 5, 2001;
b. No communication from the Senate for a conference on the compromise bill submitted by
the BCC on November 29, 2000;
c. The new Report submitted by the 2nd/3rd BCC was presented for approval on the floor
without copies thereof being furnished the members;
d. The 2nd/3rd BCC has no record of its proceedings, and the Report submitted by it was not
signed by the Chairman (Sen. Roco) thereof as well as its senator-members at the time it
was presented to and rammed for approval by the House;
e. There was no meeting actually conducted by the 2nd/3rd BCC and that its alleged Report
was instantly made and passed around for the signature of the BCC members;
f. The Senate has no record of the creation of a 2nd BCC but only of the first one that
convened on November 23, 2000;
g. The "Effectivity" clauses of SB No. 1741 and HB No. 9000, as well as that of the
compromise bill submitted by the BCC that convened on November 20, 2000, were couched
in terms that comply with the publication required by the Civil Code and jurisprudence, to wit:
...
However, it was surreptitiously replaced in its final form as it appears in § 16, R.A. No. 9006, with the
provision that "This Act shall take effect immediately upon its approval;"
h. The copy of the compromise bill submitted by the 2nd/3rd BCC that was furnished the
members during its consideration on February 7, 2001, did not have the same § 16 as it now
appears in RA No. 9006, but § 16 of the compromise bill, HB 9000 and SB 1742, reasons for
which no objection thereto was made;
i. The alleged BCC Report presented to the House on February 7, 2001, did not "contain a
detailed, sufficiently explicit statement of the changes in or amendments to the subject
measure;" and
j. The disappearance of the "Cayetano amendment," which is Section 12 of the compromise

bill submitted by the BCC. In fact, this was the subject of the purported proposed amendment
to the compromise bill of Member Paras as stated in paragraph 7 hereof. The said provision
states, thusly:
Sec. 12. Limitation on Elected Officials. – Any elected official who runs for president and vice-
president shall be considered ipso facto resigned from his office upon the filing of the certificate of
candidacy. 50
The petitioners, thus, urge the Court to go behind the enrolled copy of the bill. The Court is not
persuaded. Under the "enrolled bill doctrine," the signing of a bill by the Speaker of the House and
the Senate President and the certification of the Secretaries of both Houses of Congress that it was
passed are conclusive of its due enactment. A review of cases reveals the Court’s consistent
51
adherence to the rule. The Court finds no reason to deviate from the salutary rule in this case where
the irregularities alleged by the petitioners mostly involved the internal rules of Congress, e.g.,
creation of the 2nd or 3rd Bicameral Conference Committee by the House. This Court is not the
proper forum for the enforcement of these internal rules of Congress, whether House or Senate.
Parliamentary rules are merely procedural and with their observance the courts have no
concern. Whatever doubts there may be as to the formal validity of Rep. Act No. 9006 must be
52
resolved in its favor. The Court reiterates its ruling in Arroyo v. De Venecia, viz.:
53
But the cases, both here and abroad, in varying forms of expression, all deny to the courts the power
to inquire into allegations that, in enacting a law, a House of Congress failed to comply with its own
rules, in the absence of showing that there was a violation of a constitutional provision or the rights
of private individuals. In Osmeña v. Pendatun, it was held: "At any rate, courts have declared that
‘the rules adopted by deliberative bodies are subject to revocation, modification or waiver at the
pleasure of the body adopting them.’ And it has been said that ‘Parliamentary rules are merely
procedural, and with their observance, the courts have no concern. They may be waived or
disregarded by the legislative body.’ Consequently, ‘mere failure to conform to parliamentary usage
will not invalidate the action (taken by a deliberative body) when the requisite number of members
have agreed to a particular measure.’"
The Effectivity Clause
Is Defective
Finally, the "Effectivity" clause (Section 16) of Rep. Act No. 9006 which provides that it "shall take
effect immediately upon its approval," is defective. However, the same does not render the entire law
invalid. In Tañada v. Tuvera, this Court laid down the rule:
54
... the clause "unless it is otherwise provided" refers to the date of effectivity and not to the
requirement of publication itself, which cannot in any event be omitted. This clause does not mean
that the legislator may make the law effective immediately upon approval, or on any other date
without its previous publication.
Publication is indispensable in every case, but the legislature may in its discretion provide that the
usual fifteen-period shall be shortened or extended…. 55
Following Article 2 of the Civil Code and the doctrine enunciated in Tañada, Rep. Act No. 9006,
56
notwithstanding its express statement, took effect fifteen days after its publication in the Official
Gazette or a newspaper of general circulation.
In conclusion, it bears reiterating that one of the firmly entrenched principles in constitutional law is
that the courts do not involve themselves with nor delve into the policy or wisdom of a statute. That
is the exclusive concern of the legislative branch of the government. When the validity of a statute is
challenged on constitutional grounds, the sole function of the court is to determine whether it
transcends constitutional limitations or the limits of legislative power. No such transgression has
57
been shown in this case.
WHEREFORE, the petitions are DISMISSED. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,

Carpio, Austria-Martinez, Corona, Carpio-Morales, Azcuna, and Tinga, JJ., concur.
G.R. No. 189698 February 22, 2010
ELEAZAR P. QUINTO and GERINO A. TOLENTINO, JR., Petitioners,

vs.
COMMISSION ON ELECTIONS, Respondent.
RESOLUTION
PUNO, C.J.:
Upon a careful review of the case at bar, this Court resolves to grant the respondent Commission on
Elections’ (COMELEC) motion for reconsideration, and the movants-intervenors’ motions for
reconsideration-in-intervention, of this Court’s December 1, 2009 Decision (Decision).1
The assailed Decision granted the Petition for Certiorari and Prohibition filed by Eleazar P. Quinto
and Gerino A. Tolentino, Jr. and declared as unconstitutional the second proviso in the third
paragraph of Section 13 of Republic Act No. 9369,2 Section 66 of the Omnibus Election Code3 and
Section 4(a) of COMELEC Resolution No. 8678,4 mainly on the ground that they violate the equal
protection clause of the Constitution and suffer from overbreadth. The assailed Decision thus paved
the way for public appointive officials to continue discharging the powers, prerogatives and functions
of their office notwithstanding their entry into the political arena.
In support of their respective motions for reconsideration, respondent COMELEC and movants-
intervenors submit the following arguments:
(1) The assailed Decision is contrary to, and/or violative of, the constitutional proscription
against the participation of public appointive officials and members of the military in partisan
political activity;
(2) The assailed provisions do not violate the equal protection clause when they accord
differential treatment to elective and appointive officials, because such differential treatment
rests on material and substantial distinctions and is germane to the purposes of the law;
(3) The assailed provisions do not suffer from the infirmity of overbreadth; and
(4) There is a compelling need to reverse the assailed Decision, as public safety and interest
demand such reversal.
We find the foregoing arguments meritorious.
I.
Procedural Issues
First, we shall resolve the procedural issues on the timeliness of the COMELEC’s motion for
reconsideration which was filed on December 15, 2009, as well as the propriety of the motions for
reconsideration-in-intervention which were filed after the Court had rendered its December 1, 2009
Decision.
i. Timeliness of COMELEC’s Motion for Reconsideration
Pursuant to Section 2, Rule 56-A of the 1997 Rules of Court,5 in relation to Section 1, Rule 52 of the
same rules,6 COMELEC had a period of fifteen days from receipt of notice of the assailed Decision
within which to move for its reconsideration. COMELEC received notice of the assailed Decision on
December 2, 2009, hence, had until December 17, 2009 to file a Motion for Reconsideration.
The Motion for Reconsideration of COMELEC was timely filed. It was filed on December 14, 2009.
The corresponding Affidavit of Service (in substitution of the one originally submitted on December
14, 2009) was subsequently filed on December 17, 2009 – still within the reglementary period.
ii. Propriety of the Motions for Reconsideration-in-Intervention
Section 1, Rule 19 of the Rules of Court provides:

A person who has legal interest in the matter in litigation or in the success of either of the parties, or
an interest against both, or is so situated as to be adversely affected by a distribution or other
disposition of property in the custody of the court or of an officer thereof may, with leave of court, be
allowed to intervene in the action. The court shall consider whether or not the intervention will unduly
delay or prejudice the adjudication of the rights of the original parties, and whether or not the
intervenor’s rights may be fully protected in a separate proceeding.
Pursuant to the foregoing rule, this Court has held that a motion for intervention shall be entertained
when the following requisites are satisfied: (1) the would-be intervenor shows that he has a
substantial right or interest in the case; and (2) such right or interest cannot be adequately pursued
and protected in another proceeding.7
Upon the other hand, Section 2, Rule 19 of the Rules of Court provides the time within which a
motion for intervention may be filed, viz.:
SECTION 2. Time to intervene.– The motion for intervention may be filed at any time before
rendition of judgment by the trial court. A copy of the pleading-in-intervention shall be attached to the
motion and served on the original parties. (italics supplied)
This rule, however, is not inflexible. Interventions have been allowed even beyond the period
prescribed in the Rule, when demanded by the higher interest of justice. Interventions have also
been granted to afford indispensable parties, who have not been impleaded, the right to be heard
even after a decision has been rendered by the trial court,8 when the petition for review of the
judgment has already been submitted for decision before the Supreme Court,9 and even where the
assailed order has already become final and executory.10 In Lim v. Pacquing,11 the motion for
intervention filed by the Republic of the Philippines was allowed by this Court to avoid grave injustice
and injury and to settle once and for all the substantive issues raised by the parties.
In fine, the allowance or disallowance of a motion for intervention rests on the sound discretion of the
court12 after consideration of the appropriate circumstances.13 We stress again that Rule 19 of the
Rules of Court is a rule of procedure whose object is to make the powers of the court fully and
completely available for justice.14 Its purpose is not to hinder or delay, but to facilitate and promote
the administration of justice.15
We rule that, with the exception of the IBP – Cebu City Chapter, all the movants-intervenors may
properly intervene in the case at bar.
First, the movants-intervenors have each sufficiently established a substantial right or interest in the
case.
As a Senator of the Republic, Senator Manuel A. Roxas has a right to challenge the December 1,
2009 Decision, which nullifies a long established law; as a voter, he has a right to intervene in a
matter that involves the electoral process; and as a public officer, he has a personal interest in
maintaining the trust and confidence of the public in its system of government.
On the other hand, former Senator Franklin M. Drilon and Tom V. Apacible are candidates in the
May 2010 elections running against appointive officials who, in view of the December 1, 2009
Decision, have not yet resigned from their posts and are not likely to resign from their posts. They
stand to be directly injured by the assailed Decision, unless it is reversed.
Moreover, the rights or interests of said movants-intervenors cannot be adequately pursued and
protected in another proceeding. Clearly, their rights will be foreclosed if this Court’s Decision attains
finality and forms part of the laws of the land.
With regard to the IBP – Cebu City Chapter, it anchors its standing on the assertion that "this case
involves the constitutionality of elections laws for this coming 2010 National Elections," and that
"there is a need for it to be allowed to intervene xxx so that the voice of its members in the legal
profession would also be heard before this Highest Tribunal as it resolves issues of transcendental
importance."16
Prescinding from our rule and ruling case law, we find that the IBP-Cebu City Chapter has failed to
present a specific and substantial interest sufficient to clothe it with standing to intervene in the case
at bar. Its invoked interest is, in character, too indistinguishable to justify its intervention.
We now turn to the substantive issues.
II.
Substantive Issues
The assailed Decision struck down Section 4(a) of Resolution 8678, the second proviso in the third
paragraph of Section 13 of Republic Act (RA) 9369, and Section 66 of the Omnibus Election Code,
on the following grounds:
(1) They violate the equal protection clause of the Constitution because of the differential
treatment of persons holding appointive offices and those holding elective positions;
(2) They are overbroad insofar as they prohibit the candidacy of all civil servants holding
appointive posts: (a) without distinction as to whether or not they occupy high/influential
positions in the government, and (b) they limit these civil servants’ activity regardless of
whether they be partisan or nonpartisan in character, or whether they be in the national,
municipal or barangay level; and
(3) Congress has not shown a compelling state interest to restrict the fundamental right of
these public appointive officials.
We grant the motions for reconsideration. We now rule that Section 4(a) of Resolution 8678, Section
66 of the Omnibus Election Code, and the second proviso in the third paragraph of Section 13 of RA
9369 are not unconstitutional, and accordingly reverse our December 1, 2009 Decision.
III.
Section 4(a) of COMELEC Resolution 8678 Compliant with Law
Section 4(a) of COMELEC Resolution 8678 is a faithful reflection of the present state of the law and
jurisprudence on the matter, viz.:
Incumbent Appointive Official. - Under Section 13 of RA 9369, which reiterates Section 66 of the
Omnibus Election Code, any person holding a public appointive office or position, including active
members of the Armed Forces of the Philippines, and officers and employees in government-owned
or -controlled corporations, shall be considered ipso facto resigned from his office upon the filing of
his certificate of candidacy.
Incumbent Elected Official. – Upon the other hand, pursuant to Section 14 of RA 9006 or the Fair
Election Act,17 which repealed Section 67 of the Omnibus Election Code18 and rendered ineffective
Section 11 of R.A. 8436 insofar as it considered an elected official as resigned only upon the start of
the campaign period corresponding to the positions for which they are running,19 an elected official is
not deemed to have resigned from his office upon the filing of his certificate of candidacy for the
same or any other elected office or position. In fine, an elected official may run for another position
without forfeiting his seat.
These laws and regulations implement Section 2(4), Article IX-B of the 1987 Constitution, which
prohibits civil service officers and employees from engaging in any electioneering or partisan political
campaign.
The intention to impose a strict limitation on the participation of civil service officers and employees
in partisan political campaigns is unmistakable. The exchange between Commissioner Quesada and
Commissioner Foz during the deliberations of the Constitutional Commission is instructive:
MS. QUESADA.
xxxx
Secondly, I would like to address the issue here as provided in Section 1 (4), line 12, and I quote:
"No officer or employee in the civil service shall engage, directly or indirectly, in any partisan political
activity." This is almost the same provision as in the 1973 Constitution. However, we in the
government service have actually experienced how this provision has been violated by the direct or
indirect partisan political activities of many government officials.
So, is the Committee willing to include certain clauses that would make this provision more strict,
and which would deter its violation?
MR. FOZ. Madam President, the existing Civil Service Law and the implementing rules on the matter
are more than exhaustive enough to really prevent officers and employees in the public service from
engaging in any form of partisan political activity. But the problem really lies in implementation
because, if the head of a ministry, and even the superior officers of offices and agencies of
government will themselves violate the constitutional injunction against partisan political activity, then
no string of words that we may add to what is now here in this draft will really implement the
constitutional intent against partisan political activity. x x x20 (italics supplied)
To emphasize its importance, this constitutional ban on civil service officers and employees is
presently reflected and implemented by a number of statutes. Section 46(b)(26), Chapter 7 and
Section 55, Chapter 8 – both of Subtitle A, Title I, Book V of the Administrative Code of 1987 –
respectively provide in relevant part:
Section 44. Discipline: General Provisions:
xxxx
(b) The following shall be grounds for disciplinary action:

xxxx
(26) Engaging directly or indirectly in partisan political activities by one holding a non-political office.
xxxx
Section 55. Political Activity. — No officer or employee in the Civil Service including members of the
Armed Forces, shall engage directly or indirectly in any partisan political activity or take part in any
election except to vote nor shall he use his official authority or influence to coerce the political activity
of any other person or body. Nothing herein provided shall be understood to prevent any officer or
employee from expressing his views on current political problems or issues, or from mentioning the
names of his candidates for public office whom he supports: Provided, That public officers and
employees holding political offices may take part in political and electoral activities but it shall be
unlawful for them to solicit contributions from their subordinates or subject them to any of the acts
involving subordinates prohibited in the Election Code.
Section 261(i) of Batas Pambansa Blg. 881 (the Omnibus Election Code) further makes intervention
by civil service officers and employees in partisan political activities an election offense, viz.:
SECTION 261. Prohibited Acts. — The following shall be guilty of an election offense:
xxxx
(i) Intervention of public officers and employees. — Any officer or employee in the civil service,
except those holding political offices; any officer, employee, or member of the Armed Forces of the
Philippines, or any police force, special forces, home defense forces, barangay self-defense units
and all other para-military units that now exist or which may hereafter be organized who, directly or
indirectly, intervenes in any election campaign or engages in any partisan political activity, except to
vote or to preserve public order, if he is a peace officer.
The intent of both Congress and the framers of our Constitution to limit the participation of civil
service officers and employees in partisan political activities is too plain to be mistaken.
But Section 2(4), Article IX-B of the 1987 Constitution and the implementing statutes apply only to
civil servants holding apolitical offices. Stated differently, the constitutional ban does not cover
elected officials, notwithstanding the fact that "[t]he civil service embraces all branches, subdivisions,
instrumentalities, and agencies of the Government, including government-owned or controlled
corporations with original charters."21 This is because elected public officials, by the very nature of
their office, engage in partisan political activities almost all year round, even outside of the campaign
period.22 Political partisanship is the inevitable essence of a political office, elective positions
included.23
The prohibition notwithstanding, civil service officers and employees are allowed to vote, as well as
express their views on political issues, or mention the names of certain candidates for public office
whom they support. This is crystal clear from the deliberations of the Constitutional Commission,
viz.:
MS. AQUINO: Mr. Presiding Officer, my proposed amendment is on page 2, Section 1,

subparagraph 4, lines 13 and 14. On line 13, between the words "any" and "partisan," add the
phrase ELECTIONEERING AND OTHER; and on line 14, delete the word "activity" and in lieu
thereof substitute the word CAMPAIGN.
May I be allowed to explain my proposed amendment?
THE PRESIDING OFFICER (Mr. Treñas): Commissioner Aquino may proceed.
MS. AQUINO: The draft as presented by the Committee deleted the phrase "except to vote" which
was adopted in both the 1935 and 1973 Constitutions. The phrase "except to vote" was not intended
as a guarantee to the right to vote but as a qualification of the general prohibition against taking part
in elections.
Voting is a partisan political activity. Unless it is explicitly provided for as an exception to this
prohibition, it will amount to disenfranchisement. We know that suffrage, although plenary, is not an
unconditional right. In other words, the Legislature can always pass a statute which can withhold
from any class the right to vote in an election, if public interest so required. I would only like to
reinstate the qualification by specifying the prohibited acts so that those who may want to vote but
who are likewise prohibited from participating in partisan political campaigns or electioneering may
vote.
MR. FOZ: There is really no quarrel over this point, but please understand that there was no
intention on the part of the Committee to disenfranchise any government official or employee. The
elimination of the last clause of this provision was precisely intended to protect the members of the
civil service in the sense that they are not being deprived of the freedom of expression in a political
contest. The last phrase or clause might have given the impression that a government employee or
worker has no right whatsoever in an election campaign except to vote, which is not the case. They
are still free to express their views although the intention is not really to allow them to take part
actively in a political campaign.24
IV.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election
Code Do Not Violate the Equal Protection Clause
We now hold that Section 4(a) of Resolution 8678, Section 66 of the Omnibus Election Code, and
the second proviso in the third paragraph of Section 13 of RA 9369 are not violative of the equal
protection clause of the Constitution.
i. Fariñas, et al. v. Executive Secretary, et al. is Controlling
In truth, this Court has already ruled squarely on whether these deemed-resigned provisions
challenged in the case at bar violate the equal protection clause of the Constitution in Fariñas, et al.
v. Executive Secretary, et al.25
In Fariñas, the constitutionality of Section 14 of the Fair Election Act, in relation to Sections 66 and
67 of the Omnibus Election Code, was assailed on the ground, among others, that it unduly
discriminates against appointive officials. As Section 14 repealed Section 67 (i.e., the deemed-
resigned provision in respect of elected officials) of the Omnibus Election Code, elected officials are
no longer considered ipso facto resigned from their respective offices upon their filing of certificates
of candidacy. In contrast, since Section 66 was not repealed, the limitation on appointive officials
continues to be operative – they are deemed resigned when they file their certificates of candidacy.
The petitioners in Fariñas thus brought an equal protection challenge against Section 14, with the
end in view of having the deemed-resigned provisions "apply equally" to both elected and appointive
officials. We held, however, that the legal dichotomy created by the Legislature is a reasonable
classification, as there are material and significant distinctions between the two classes of officials.
Consequently, the contention that Section 14 of the Fair Election Act, in relation to Sections 66 and
67 of the Omnibus Election Code, infringed on the equal protection clause of the Constitution, failed
muster. We ruled:
The petitioners' contention, that the repeal of Section 67 of the Omnibus Election Code pertaining to
elective officials gives undue benefit to such officials as against the appointive ones and violates the
equal protection clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution is not absolute, but is subject to
reasonable classification. If the groupings are characterized by substantial distinctions that make
real differences, one class may be treated and regulated differently from the other. The Court has
explained the nature of the equal protection guarantee in this manner:
The equal protection of the law clause is against undue favor and individual or class privilege, as
well as hostile discrimination or the oppression of inequality. It is not intended to prohibit legislation
which is limited either in the object to which it is directed or by territory within which it is to operate. It
does not demand absolute equality among residents; it merely requires that all persons shall be
treated alike, under like circumstances and conditions both as to privileges conferred and liabilities
enforced. The equal protection clause is not infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike to all persons within such class, and
reasonable grounds exist for making a distinction between those who fall within such class and
those who do not.
Substantial distinctions clearly exist between elective officials and appointive officials. The former
occupy their office by virtue of the mandate of the electorate. They are elected to an office for a
definite term and may be removed therefrom only upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of their designation thereto by an appointing authority.
Some appointive officials hold their office in a permanent capacity and are entitled to security of
tenure while others serve at the pleasure of the appointing authority.
Another substantial distinction between the two sets of officials is that under Section 55, Chapter 8,
Title I, Subsection A. Civil Service Commission, Book V of the Administrative Code of 1987
(Executive Order No. 292), appointive officials, as officers and employees in the civil service, are
strictly prohibited from engaging in any partisan political activity or take (sic) part in any election
except to vote. Under the same provision, elective officials, or officers or employees holding political
offices, are obviously expressly allowed to take part in political and electoral activities.
By repealing Section 67 but retaining Section 66 of the Omnibus Election Code, the legislators
deemed it proper to treat these two classes of officials differently with respect to the effect on their
tenure in the office of the filing of the certificates of candidacy for any position other than those
occupied by them. Again, it is not within the power of the Court to pass upon or look into the wisdom
of this classification.
Since the classification justifying Section 14 of Rep. Act No. 9006, i.e., elected officials vis-à-vis
appointive officials, is anchored upon material and significant distinctions and all the persons
belonging under the same classification are similarly treated, the equal protection clause of the
Constitution is, thus, not infringed.26
The case at bar is a crass attempt to resurrect a dead issue. The miracle is that our assailed
Decision gave it new life. We ought to be guided by the doctrine of stare decisis et non quieta
movere. This doctrine, which is really "adherence to precedents," mandates that once a case has
been decided one way, then another case involving exactly the same point at issue should be
decided in the same manner.27 This doctrine is one of policy grounded on the necessity for securing
certainty and stability of judicial decisions. As the renowned jurist Benjamin Cardozo stated in his
treatise The Nature of the Judicial Process:
It will not do to decide the same question one way between one set of litigants and the opposite way
between another. "If a group of cases involves the same point, the parties expect the same decision.
It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided
against me yesterday when I was a defendant, I shall look for the same judgment today if I am
plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be
an infringement, material and moral, of my rights." Adherence to precedent must then be the rule
rather than the exception if litigants are to have faith in the even-handed administration of justice in
the courts.28
Our Fariñas ruling on the equal protection implications of the deemed-resigned provisions cannot be
minimalized as mere obiter dictum. It is trite to state that an adjudication on any point within the
issues presented by the case cannot be considered as obiter dictum.29 This rule applies to all
pertinent questions that are presented and resolved in the regular course of the consideration of the
case and lead up to the final conclusion, and to any statement as to the matter on which the decision
is predicated.30 For that reason, a point expressly decided does not lose its value as a precedent
because the disposition of the case is, or might have been, made on some other ground; or even
though, by reason of other points in the case, the result reached might have been the same if the
court had held, on the particular point, otherwise than it did.31 As we held in Villanueva, Jr. v. Court of
Appeals, et al.:32
… A decision which the case could have turned on is not regarded as obiter dictum merely because,
owing to the disposal of the contention, it was necessary to consider another question, nor can an
additional reason in a decision, brought forward after the case has been disposed of on one ground,
be regarded as dicta. So, also, where a case presents two (2) or more points, any one of which is
sufficient to determine the ultimate issue, but the court actually decides all such points, the case as
an authoritative precedent as to every point decided, and none of such points can be regarded as
having the status of a dictum, and one point should not be denied authority merely because another
point was more dwelt on and more fully argued and considered, nor does a decision on one
proposition make statements of the court regarding other propositions dicta.33 (italics supplied)
ii. Classification Germane to the Purposes of the Law
The Fariñas ruling on the equal protection challenge stands on solid ground even if reexamined.
To start with, the equal protection clause does not require the universal application of the laws to all
persons or things without distinction.34 What it simply requires is equality among equals as
determined according to a valid classification.35 The test developed by jurisprudence here and
yonder is that of reasonableness,36 which has four requisites:
(1) The classification rests on substantial distinctions;
(2) It is germane to the purposes of the law;
(3) It is not limited to existing conditions only; and

(4) It applies equally to all members of the same class.37
Our assailed Decision readily acknowledged that these deemed-resigned provisions satisfy the first,
third and fourth requisites of reasonableness. It, however, proffers the dubious conclusion that the
differential treatment of appointive officials vis-à-vis elected officials is not germane to the purpose of
the law, because "whether one holds an appointive office or an elective one, the evils sought to be
prevented by the measure remain," viz.:
… For example, the Executive Secretary, or any Member of the Cabinet for that matter, could wield
the same influence as the Vice-President who at the same time is appointed to a Cabinet post (in the
recent past, elected Vice-Presidents were appointed to take charge of national housing, social
welfare development, interior and local government, and foreign affairs). With the fact that they both
head executive offices, there is no valid justification to treat them differently when both file their
[Certificates of Candidacy] for the elections. Under the present state of our law, the Vice-President,
in the example, running this time, let us say, for President, retains his position during the entire
election period and can still use the resources of his office to support his campaign.38
Sad to state, this conclusion conveniently ignores the long-standing rule that to remedy an injustice,
the Legislature need not address every manifestation of the evil at once; it may proceed "one step at
a time."39 In addressing a societal concern, it must invariably draw lines and make choices, thereby
creating some inequity as to those included or excluded.40 Nevertheless, as long as "the bounds of
reasonable choice" are not exceeded, the courts must defer to the legislative judgment.41 We may
not strike down a law merely because the legislative aim would have been more fully achieved by
expanding the class.42 Stated differently, the fact that a legislative classification, by itself, is
underinclusive will not render it unconstitutionally arbitrary or invidious.43 There is no constitutional
requirement that regulation must reach each and every class to which it might be applied;44 that the
Legislature must be held rigidly to the choice of regulating all or none.
Thus, any person who poses an equal protection challenge must convincingly show that the law
creates a classification that is "palpably arbitrary or capricious."45 He must refute all possible rational
bases for the differing treatment, whether or not the Legislature cited those bases as reasons for the
enactment,46 such that the constitutionality of the law must be sustained even if the reasonableness
of the classification is "fairly debatable."47 In the case at bar, the petitioners failed – and in fact did
not even attempt – to discharge this heavy burden. Our assailed Decision was likewise silent as a
sphinx on this point even while we submitted the following thesis:
... [I]t is not sufficient grounds for invalidation that we may find that the statute’s distinction is unfair,
underinclusive, unwise, or not the best solution from a public-policy standpoint; rather, we must find
that there is no reasonably rational reason for the differing treatment.48
In the instant case, is there a rational justification for excluding elected officials from the operation of
the deemed resigned provisions? I submit that there is.
An election is the embodiment of the popular will, perhaps the purest expression of the sovereign
power of the people.49 It involves the choice or selection of candidates to public office by popular
vote.50 Considering that elected officials are put in office by their constituents for a definite term, it
may justifiably be said that they were excluded from the ambit of the deemed resigned provisions in
utmost respect for the mandate of the sovereign will. In other words, complete deference is accorded
to the will of the electorate that they be served by such officials until the end of the term for which
they were elected. In contrast, there is no such expectation insofar as appointed officials are
concerned.
The dichotomized treatment of appointive and elective officials is therefore germane to the purposes
of the law. For the law was made not merely to preserve the integrity, efficiency, and discipline of the
public service; the Legislature, whose wisdom is outside the rubric of judicial scrutiny, also thought it
wise to balance this with the competing, yet equally compelling, interest of deferring to the sovereign
will.51 (emphasis in the original)
In fine, the assailed Decision would have us "equalize the playing field" by invalidating provisions of
law that seek to restrain the evils from running riot. Under the pretext of equal protection, it would
favor a situation in which the evils are unconfined and vagrant, existing at the behest of both
appointive and elected officials, over another in which a significant portion thereof is contained. The
absurdity of that position is self-evident, to say the least.
The concern, voiced by our esteemed colleague, Mr. Justice Nachura, in his dissent, that elected
officials (vis-à-vis appointive officials) have greater political clout over the electorate, is indeed a
matter worth exploring – but not by this Court. Suffice it to say that the remedy lies with the
Legislature. It is the Legislature that is given the authority, under our constitutional system, to
balance competing interests and thereafter make policy choices responsive to the exigencies of the
times. It is certainly within the Legislature’s power to make the deemed-resigned provisions
applicable to elected officials, should it later decide that the evils sought to be prevented are of such
frequency and magnitude as to tilt the balance in favor of expanding the class. This Court cannot
and should not arrogate unto itself the power to ascertain and impose on the people the best state of
affairs from a public policy standpoint.
iii. Mancuso v. Taft Has Been Overruled
Finding no Philippine jurisprudence to prop up its equal protection ruling, our assailed Decision
adverted to, and extensively cited, Mancuso v. Taft.52 This was a decision of the First Circuit of the
United States Court of Appeals promulgated in March 1973, which struck down as unconstitutional a
similar statutory provision. Pathetically, our assailed Decision, relying on Mancuso, claimed:
(1) The right to run for public office is "inextricably linked" with two fundamental freedoms –
freedom of expression and association;
(2) Any legislative classification that significantly burdens this fundamental right must be
subjected to strict equal protection review; and
(3) While the state has a compelling interest in maintaining the honesty and impartiality of its
public work force, the deemed-resigned provisions pursue their objective in a far too heavy-
handed manner as to render them unconstitutional.
It then concluded with the exhortation that since "the Americans, from whom we copied the provision
in question, had already stricken down a similar measure for being unconstitutional[,] it is high-time
that we, too, should follow suit."
Our assailed Decision’s reliance on Mancuso is completely misplaced. We cannot blink away the
fact that the United States Supreme Court effectively overruled Mancuso three months after its
promulgation by the United States Court of Appeals. In United States Civil Service Commission, et
al. v. National Association of Letter Carriers AFL-CIO, et al.53 and Broadrick, et al. v. State of
Oklahoma, et al.,54 the United States Supreme Court was faced with the issue of whether statutory
provisions prohibiting federal55 and state56 employees from taking an active part in political
management or in political campaigns were unconstitutional as to warrant facial invalidation.
Violation of these provisions results in dismissal from employment and possible criminal sanctions.
The Court declared these provisions compliant with the equal protection clause. It held that (i) in
regulating the speech of its employees, the state as employer has interests that differ significantly
from those it possesses in regulating the speech of the citizenry in general; (ii) the courts must
therefore balance the legitimate interest of employee free expression against the interests of the
employer in promoting efficiency of public services; (iii) if the employees’ expression interferes with
the maintenance of efficient and regularly functioning services, the limitation on speech is not
unconstitutional; and (iv) the Legislature is to be given some flexibility or latitude in ascertaining
which positions are to be covered by any statutory restrictions.57 Therefore, insofar as government
employees are concerned, the correct standard of review is an interest-balancing approach, a
means-end scrutiny that examines the closeness of fit between the governmental interests and the
prohibitions in question.58
Letter Carriers elucidated on these principles, as follows:
Until now, the judgment of Congress, the Executive, and the country appears to have been that
partisan political activities by federal employees must be limited if the Government is to operate
effectively and fairly, elections are to play their proper part in representative government, and
employees themselves are to be sufficiently free from improper influences. The restrictions so far
imposed on federal employees are not aimed at particular parties, groups, or points of view, but
apply equally to all partisan activities of the type described. They discriminate against no racial,
ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere
with or influence anyone's vote at the polls.
But, as the Court held in Pickering v. Board of Education,59 the government has an interest in
regulating the conduct and ‘the speech of its employees that differ(s) significantly from those it
possesses in connection with regulation of the speech of the citizenry in general. The problem in any
case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting
upon matters of public concern and the interest of the (government), as an employer, in promoting
the efficiency of the public services it performs through its employees.’ Although Congress is free to
strike a different balance than it has, if it so chooses, we think the balance it has so far struck is
sustainable by the obviously important interests sought to be served by the limitations on partisan
political activities now contained in the Hatch Act.
It seems fundamental in the first place that employees in the Executive Branch of the Government,
or those working for any of its agencies, should administer the law in accordance with the will of
Congress, rather than in accordance with their own or the will of a political party. They are expected
to enforce the law and execute the programs of the Government without bias or favoritism for or
against any political party or group or the members thereof. A major thesis of the Hatch Act is that to
serve this great end of Government-the impartial execution of the laws-it is essential that federal
employees, for example, not take formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run for office on partisan political tickets.
Forbidding activities like these will reduce the hazards to fair and effective government.
There is another consideration in this judgment: it is not only important that the Government and its
employees in fact avoid practicing political justice, but it is also critical that they appear to the public
to be avoiding it, if confidence in the system of representative Government is not to be eroded to a
disastrous extent.
Another major concern of the restriction against partisan activities by federal employees was
perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction
that the rapidly expanding Government work force should not be employed to build a powerful,
invincible, and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns
convinced Congress that these dangers were sufficiently real that substantial barriers should be
raised against the party in power-or the party out of power, for that matter-using the thousands or
hundreds of thousands of federal employees, paid for at public expense, to man its political structure
and political campaigns.
A related concern, and this remains as important as any other, was to further serve the goal that
employment and advancement in the Government service not depend on political performance, and
at the same time to make sure that Government employees would be free from pressure and from
express or tacit invitation to vote in a certain way or perform political chores in order to curry favor
with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against
coercion are sufficient protection; but for many years the joint judgment of the Executive and
Congress has been that to protect the rights of federal employees with respect to their jobs and their
political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or
coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the
prohibition against political activity, the Chairman of the Civil Service Commission stated that ‘the
prohibitions against active participation in partisan political management and partisan political
campaigns constitute the most significant safeguards against coercion . . ..’ Perhaps Congress at
some time will come to a different view of the realities of political life and Government service; but
that is its current view of the matter, and we are not now in any position to dispute it. Nor, in our
view, does the Constitution forbid it.
Neither the right to associate nor the right to participate in political activities is absolute in any
event.60 x x x
xxxx
As we see it, our task is not to destroy the Act if we can, but to construe it, if consistent with the will
of Congress, so as to comport with constitutional limitations. (italics supplied)
Broadrick likewise definitively stated that the assailed statutory provision is constitutionally
permissible, viz.:
Appellants do not question Oklahoma's right to place even-handed restrictions on the partisan
political conduct of state employees. Appellants freely concede that such restrictions serve valid and
important state interests, particularly with respect to attracting greater numbers of qualified people by
insuring their job security, free from the vicissitudes of the elective process, and by protecting them
from ‘political extortion.’ Rather, appellants maintain that however permissible, even commendable,
the goals of s 818 may be, its language is unconstitutionally vague and its prohibitions too broad in
their sweep, failing to distinguish between conduct that may be proscribed and conduct that must be
permitted. For these and other reasons, appellants assert that the sixth and seventh paragraphs of s
818 are void in toto and cannot be enforced against them or anyone else.
We have held today that the Hatch Act is not impermissibly vague.61 We have little doubt that s 818
is similarly not so vague that ‘men of common intelligence must necessarily guess at its
meaning.’62 Whatever other problems there are with s 818, it is all but frivolous to suggest that the
section fails to give adequate warning of what activities it proscribes or fails to set out ‘explicit
standards' for those who must apply it. In the plainest language, it prohibits any state classified
employee from being ‘an officer or member’ of a ‘partisan political club’ or a candidate for ‘any paid
public office.’ It forbids solicitation of contributions ‘for any political organization, candidacy or other
political purpose’ and taking part ‘in the management or affairs of any political party or in any political
campaign.’ Words inevitably contain germs of uncertainty and, as with the Hatch Act, there may be
disputes over the meaning of such terms in s 818 as ‘partisan,’ or ‘take part in,’ or ‘affairs of’ political
parties. But what was said in Letter Carriers, is applicable here: ‘there are limitations in the English
language with respect to being both specific and manageably brief, and it seems to us that although
the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that
the ordinary person exercising ordinary common sense can sufficiently understand and comply with,
without sacrifice to the public interest.' x x x
xxxx
[Appellants] nevertheless maintain that the statute is overbroad and purports to reach protected, as
well as unprotected conduct, and must therefore be struck down on its face and held to be incapable
of any constitutional application. We do not believe that the overbreadth doctrine may appropriately
be invoked in this manner here.
xxxx
The consequence of our departure from traditional rules of standing in the First Amendment area is
that any enforcement of a statute thus placed at issue is totally forbidden until and unless a limiting
construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to
constitutionally protected expression. Application of the overbreadth doctrine in this manner is,
manifestly, strong medicine. It has been employed by the Court sparingly and only as a last resort. x
xx
x x x But the plain import of our cases is, at the very least, that facial over-breadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at the outset,
attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from
‘pure speech’ toward conduct and that conduct-even if expressive-falls within the scope of otherwise
valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct. Although such laws, if too broadly worded, may deter
protected speech to some unknown extent, there comes a point where that effect-at best a
prediction-cannot, with confidence, justify invalidating a statute on its face and so prohibiting a State
from enforcing the statute against conduct that is admittedly within its power to proscribe. To put the
matter another way, particularly where conduct and not merely speech is involved, we believe that
the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep. It is our view that s 818 is not substantially overbroad and that
whatever overbreadth may exist should be cured through case-by-case analysis of the fact situations
to which its sanctions, assertedly, may not be applied.
Unlike ordinary breach-of-the peace statutes or other broad regulatory acts, s 818 is directed, by its
terms, at political expression which if engaged in by private persons would plainly be protected by
the First and Fourteenth Amendments. But at the same time, s 818 is not a censorial statute,
directed at particular groups or viewpoints. The statute, rather, seeks to regulate political activity in
an even-handed and neutral manner. As indicted, such statutes have in the past been subject to a
less exacting overbreadth scrutiny. Moreover, the fact remains that s 818 regulates a substantial
spectrum of conduct that is as manifestly subject to state regulation as the public peace or criminal
trespass. This much was established in United Public Workers v. Mitchell, and has been
unhesitatingly reaffirmed today in Letter Carriers. Under the decision in Letter Carriers, there is no
question that s 818 is valid at least insofar as it forbids classified employees from: soliciting
contributions for partisan candidates, political parties, or other partisan political purposes; becoming
members of national, state, or local committees of political parties, or officers or committee members
in partisan political clubs, or candidates for any paid public office; taking part in the management or
affairs of any political party's partisan political campaign; serving as delegates or alternates to
caucuses or conventions of political parties; addressing or taking an active part in partisan political
rallies or meetings; soliciting votes or assisting voters at the polls or helping in a partisan effort to get
voters to the polls; participating in the distribution of partisan campaign literature; initiating or
circulating partisan nominating petitions; or riding in caravans for any political party or partisan
political candidate.
x x x It may be that such restrictions are impermissible and that s 818 may be susceptible of some
other improper applications. But, as presently construed, we do not believe that s 818 must be
discarded in toto because some persons’ arguably protected conduct may or may not be caught or
chilled by the statute. Section 818 is not substantially overbroad and it not, therefore,
unconstitutional on its face. (italics supplied)
It bears stressing that, in his Dissenting Opinion, Mr. Justice Nachura does not deny the principles
enunciated in Letter Carriers and Broadrick. He would hold, nonetheless, that these cases cannot be
interpreted to mean a reversal of Mancuso, since they "pertain to different types of laws and were
decided based on a different set of facts," viz.:
In Letter Carriers, the plaintiffs alleged that the Civil Service Commission was enforcing, or
threatening to enforce, the Hatch Act’s prohibition against "active participation in political
management or political campaigns." The plaintiffs desired to campaign for candidates for public
office, to encourage and get federal employees to run for state and local offices, to participate as
delegates in party conventions, and to hold office in a political club.
In Broadrick, the appellants sought the invalidation for being vague and overbroad a provision in the
(sic) Oklahoma’s Merit System of Personnel Administration Act restricting the political activities of
the State’s classified civil servants, in much the same manner as the Hatch Act proscribed partisan
political activities of federal employees. Prior to the commencement of the action, the appellants
actively participated in the 1970 reelection campaign of their superior, and were administratively
charged for asking other Corporation Commission employees to do campaign work or to give
referrals to persons who might help in the campaign, for soliciting money for the campaign, and for
receiving and distributing campaign posters in bulk.
Mancuso, on the other hand, involves, as aforesaid, an automatic resignation provision. Kenneth
Mancuso, a full time police officer and classified civil service employee of the City of Cranston, filed
as a candidate for nomination as representative to the Rhode Island General Assembly. The Mayor
of Cranston then began the process of enforcing the resign-to-run provision of the City Home Rule
Charter.
Clearly, as the above-cited US cases pertain to different types of laws and were decided based on a
different set of facts, Letter Carriers and Broadrick cannot be interpreted to mean a reversal of
Mancuso. x x x (italics in the original)
We hold, however, that his position is belied by a plain reading of these cases. Contrary to his claim,
Letter Carriers, Broadrick and Mancuso all concerned the constitutionality of resign-to-run laws, viz.:
(1) Mancuso involved a civil service employee who filed as a candidate for nomination as
representative to the Rhode Island General Assembly. He assailed the constitutionality of
§14.09(c) of the City Home Rule Charter, which prohibits "continuing in the classified service
of the city after becoming a candidate for nomination or election to any public office."
(2) Letter Carriers involved plaintiffs who alleged that the Civil Service Commission was
enforcing, or threatening to enforce, the Hatch Act’s prohibition against "active participation
in political management or political campaigns"63 with respect to certain defined activities in
which they desired to engage. The plaintiffs relevant to this discussion are:
(a) The National Association of Letter Carriers, which alleged that its members were
desirous of, among others, running in local elections for offices such as school board
member, city council member or mayor;
(b) Plaintiff Gee, who alleged that he desired to, but did not, file as a candidate for
the office of Borough Councilman in his local community for fear that his participation
in a partisan election would endanger his job; and
(c) Plaintiff Myers, who alleged that he desired to run as a Republican candidate in
the 1971 partisan election for the mayor of West Lafayette, Indiana, and that he
would do so except for fear of losing his job by reason of violation of the Hatch Act.
The Hatch Act defines "active participation in political management or political campaigns" by cross-
referring to the rules made by the Civil Service Commission. The rule pertinent to our inquiry states:
30. Candidacy for local office: Candidacy for a nomination or for election to any National, State,
county, or municipal office is not permissible. The prohibition against political activity extends not
merely to formal announcement of candidacy but also to the preliminaries leading to such
announcement and to canvassing or soliciting support or doing or permitting to be done any act in
furtherance of candidacy. The fact that candidacy, is merely passive is immaterial; if an employee
acquiesces in the efforts of friends in furtherance of such candidacy such acquiescence constitutes
an infraction of the prohibitions against political activity. (italics supplied)
Section 9(b) requires the immediate removal of violators and forbids the use of appropriated funds
thereafter to pay compensation to these persons.64
(3) Broadrick was a class action brought by certain Oklahoma state employees seeking a declaration
of unconstitutionality of two sub-paragraphs of Section 818 of Oklahoma’s Merit System of
Personnel Administration Act. Section 818 (7), the paragraph relevant to this discussion, states that
"[n]o employee in the classified service shall be … a candidate for nomination or election to any paid
public office…" Violation of Section 818 results in dismissal from employment, possible criminal
sanctions and limited state employment ineligibility.
Consequently, it cannot be denied that Letter Carriers and Broadrick effectively overruled Mancuso.
By no stretch of the imagination could Mancuso still be held operative, as Letter Carriers and
Broadrick (i) concerned virtually identical resign-to-run laws, and (ii) were decided by a superior
court, the United States Supreme Court. It was thus not surprising for the First Circuit Court of
Appeals – the same court that decided Mancuso – to hold categorically and emphatically in Magill v.
Lynch65 that Mancuso is no longer good law. As we priorly explained:
Magill involved Pawtucket, Rhode Island firemen who ran for city office in 1975. Pawtucket’s "Little
Hatch Act" prohibits city employees from engaging in a broad range of political activities. Becoming a
candidate for any city office is specifically proscribed,66 the violation being punished by removal from
office or immediate dismissal. The firemen brought an action against the city officials on the ground
that that the provision of the city charter was unconstitutional. However, the court, fully cognizant of
Letter Carriers and Broadrick, took the position that Mancuso had since lost considerable vitality. It
observed that the view that political candidacy was a fundamental interest which could be infringed
upon only if less restrictive alternatives were not available, was a position which was no longer
viable, since the Supreme Court (finding that the government’s interest in regulating both the
conduct and speech of its employees differed significantly from its interest in regulating those of the
citizenry in general) had given little weight to the argument that prohibitions against the coercion of
government employees were a less drastic means to the same end, deferring to the judgment of
Congress, and applying a "balancing" test to determine whether limits on political activity by public
employees substantially served government interests which were "important" enough to outweigh
the employees’ First Amendment rights.67
It must be noted that the Court of Appeals ruled in this manner even though the election in Magill
was characterized as nonpartisan, as it was reasonable for the city to fear, under the circumstances
of that case, that politically active bureaucrats might use their official power to help political friends
and hurt political foes. Ruled the court:
The question before us is whether Pawtucket's charter provision, which bars a city employee's
candidacy in even a nonpartisan city election, is constitutional. The issue compels us to extrapolate
two recent Supreme Court decisions, Civil Service Comm'n v. Nat'l Ass'n of Letter Carriers and
Broadrick v. Oklahoma. Both dealt with laws barring civil servants from partisan political activity.
Letter Carriers reaffirmed United Public Workers v. Mitchell, upholding the constitutionality of the
Hatch Act as to federal employees. Broadrick sustained Oklahoma's "Little Hatch Act" against
constitutional attack, limiting its holding to Oklahoma's construction that the Act barred only activity in
partisan politics. In Mancuso v. Taft, we assumed that proscriptions of candidacy in nonpartisan
elections would not be constitutional. Letter Carriers and Broadrick compel new analysis.
xxxx
What we are obligated to do in this case, as the district court recognized, is to apply the Court’s
interest balancing approach to the kind of nonpartisan election revealed in this record. We believe
that the district court found more residual vigor in our opinion in Mancuso v. Taft than remains after
Letter Carriers. We have particular reference to our view that political candidacy was a fundamental
interest which could be trenched upon only if less restrictive alternatives were not available. While
this approach may still be viable for citizens who are not government employees, the Court in Letter
Carriers recognized that the government's interest in regulating both the conduct and speech of its
employees differs significantly from its interest in regulating those of the citizenry in general. Not only
was United Public Workers v. Mitchell "unhesitatingly" reaffirmed, but the Court gave little weight to
the argument that prohibitions against the coercion of government employees were a less drastic
means to the same end, deferring to the judgment of the Congress. We cannot be more precise than
the Third Circuit in characterizing the Court's approach as "some sort of 'balancing' process".68 It
appears that the government may place limits on campaigning by public employees if the limits
substantially serve government interests that are "important" enough to outweigh the employees'
First Amendment rights. x x x (italics supplied)
Upholding thus the constitutionality of the law in question, the Magill court detailed the major
governmental interests discussed in Letter Carriers and applied them to the Pawtucket provision as
follows:
In Letter Carriers[,] the first interest identified by the Court was that of an efficient government,
faithful to the Congress rather than to party. The district court discounted this interest, reasoning that
candidates in a local election would not likely be committed to a state or national platform. This
observation undoubtedly has substance insofar as allegiance to broad policy positions is concerned.
But a different kind of possible political intrusion into efficient administration could be thought to
threaten municipal government: not into broad policy decisions, but into the particulars of
administration favoritism in minute decisions affecting welfare, tax assessments, municipal contracts
and purchasing, hiring, zoning, licensing, and inspections. Just as the Court in Letter Carriers
identified a second governmental interest in the avoidance of the appearance of "political justice" as
to policy, so there is an equivalent interest in avoiding the appearance of political preferment in
privileges, concessions, and benefits. The appearance (or reality) of favoritism that the charter's
authors evidently feared is not exorcised by the nonpartisan character of the formal election process.
Where, as here, party support is a key to successful campaigning, and party rivalry is the norm, the
city might reasonably fear that politically active bureaucrats would use their official power to help
political friends and hurt political foes. This is not to say that the city's interest in visibly fair and
effective administration necessarily justifies a blanket prohibition of all employee campaigning; if
parties are not heavily involved in a campaign, the danger of favoritism is less, for neither friend nor
foe is as easily identified.
A second major governmental interest identified in Letter Carriers was avoiding the danger of a
powerful political machine. The Court had in mind the large and growing federal bureaucracy and its
partisan potential. The district court felt this was only a minor threat since parties had no control over
nominations. But in fact candidates sought party endorsements, and party endorsements proved to
be highly effective both in determining who would emerge from the primary election and who would
be elected in the final election. Under the prevailing customs, known party affiliation and support
were highly significant factors in Pawtucket elections. The charter's authors might reasonably have
feared that a politically active public work force would give the incumbent party, and the incumbent
workers, an unbreakable grasp on the reins of power. In municipal elections especially, the small
size of the electorate and the limited powers of local government may inhibit the growth of interest
groups powerful enough to outbalance the weight of a partisan work force. Even when nonpartisan
issues and candidacies are at stake, isolated government employees may seek to influence voters
or their co-workers improperly; but a more real danger is that a central party structure will mass the
scattered powers of government workers behind a single party platform or slate. Occasional misuse
of the public trust to pursue private political ends is tolerable, especially because the political views
of individual employees may balance each other out. But party discipline eliminates this diversity and
tends to make abuse systematic. Instead of a handful of employees pressured into advancing their
immediate superior's political ambitions, the entire government work force may be expected to turn
out for many candidates in every election. In Pawtucket, where parties are a continuing presence in
political campaigns, a carefully orchestrated use of city employees in support of the incumbent
party's candidates is possible. The danger is scarcely lessened by the openness of Pawtucket's
nominating procedure or the lack of party labels on its ballots.
The third area of proper governmental interest in Letter Carriers was ensuring that employees
achieve advancement on their merits and that they be free from both coercion and the prospect of
favor from political activity. The district court did not address this factor, but looked only to the
possibility of a civil servant using his position to influence voters, and held this to be no more of a
threat than in the most nonpartisan of elections. But we think that the possibility of coercion of
employees by superiors remains as strong a factor in municipal elections as it was in Letter Carriers.
Once again, it is the systematic and coordinated exploitation of public servants for political ends that
a legislature is most likely to see as the primary threat of employees' rights. Political oppression of
public employees will be rare in an entirely nonpartisan system. Some superiors may be inclined to
ride herd on the politics of their employees even in a nonpartisan context, but without party officials
looking over their shoulders most supervisors will prefer to let employees go their own ways.
In short, the government may constitutionally restrict its employees' participation in nominally
nonpartisan elections if political parties play a large role in the campaigns. In the absence of
substantial party involvement, on the other hand, the interests identified by the Letter Carriers Court
lose much of their force. While the employees' First Amendment rights would normally outbalance
these diminished interests, we do not suggest that they would always do so. Even when parties are
absent, many employee campaigns might be thought to endanger at least one strong public interest,
an interest that looms larger in the context of municipal elections than it does in the national
elections considered in Letter Carriers. The city could reasonably fear the prospect of a subordinate
running directly against his superior or running for a position that confers great power over his
superior. An employee of a federal agency who seeks a Congressional seat poses less of a direct
challenge to the command and discipline of his agency than a fireman or policeman who runs for
mayor or city council. The possibilities of internal discussion, cliques, and political bargaining, should
an employee gather substantial political support, are considerable. (citations omitted)
The court, however, remanded the case to the district court for further proceedings in respect of the
petitioners’ overbreadth charge. Noting that invalidating a statute for being overbroad is "not to be
taken lightly, much less to be taken in the dark," the court held:
The governing case is Broadrick, which introduced the doctrine of "substantial" overbreadth in a
closely analogous case. Under Broadrick, when one who challenges a law has engaged in
constitutionally unprotected conduct (rather than unprotected speech) and when the challenged law
is aimed at unprotected conduct, "the overbreadth of a statute must not only be real, but substantial
as well, judged in relation to the statute's plainly legitimate sweep." Two major uncertainties attend
the doctrine: how to distinguish speech from conduct, and how to define "substantial" overbreadth.
We are spared the first inquiry by Broadrick itself. The plaintiffs in that case had solicited support for
a candidate, and they were subject to discipline under a law proscribing a wide range of activities,
including soliciting contributions for political candidates and becoming a candidate. The Court found
that this combination required a substantial overbreadth approach. The facts of this case are so
similar that we may reach the same result without worrying unduly about the sometimes opaque
distinction between speech and conduct.
The second difficulty is not so easily disposed of. Broadrick found no substantial overbreadth in a
statute restricting partisan campaigning. Pawtucket has gone further, banning participation in
nonpartisan campaigns as well. Measuring the substantiality of a statute's overbreadth apparently
requires, inter alia, a rough balancing of the number of valid applications compared to the number of
potentially invalid applications. Some sensitivity to reality is needed; an invalid application that is far-
fetched does not deserve as much weight as one that is probable. The question is a matter of
degree; it will never be possible to say that a ratio of one invalid to nine valid applications makes a
law substantially overbroad. Still, an overbreadth challenger has a duty to provide the court with
some idea of the number of potentially invalid applications the statute permits. Often, simply reading
the statute in the light of common experience or litigated cases will suggest a number of probable
invalid applications. But this case is different. Whether the statute is overbroad depends in large part
on the number of elections that are insulated from party rivalry yet closed to Pawtucket employees.
For all the record shows, every one of the city, state, or federal elections in Pawtucket is actively
contested by political parties. Certainly the record suggests that parties play a major role even in
campaigns that often are entirely nonpartisan in other cities. School committee candidates, for
example, are endorsed by the local Democratic committee.
The state of the record does not permit us to find overbreadth; indeed such a step is not to be taken
lightly, much less to be taken in the dark. On the other hand, the entire focus below, in the short
period before the election was held, was on the constitutionality of the statute as applied. Plaintiffs
may very well feel that further efforts are not justified, but they should be afforded the opportunity to
demonstrate that the charter forecloses access to a significant number of offices, the candidacy for
which by municipal employees would not pose the possible threats to government efficiency and
integrity which Letter Carriers, as we have interpreted it, deems significant. Accordingly, we remand
for consideration of plaintiffs' overbreadth claim. (italics supplied, citations omitted)
Clearly, Letter Carriers, Broadrick, and Magill demonstrate beyond doubt that Mancuso v. Taft,
heavily relied upon by the ponencia, has effectively been overruled.69 As it is no longer good law, the
ponencia’s exhortation that "[since] the Americans, from whom we copied the provision in question,
had already stricken down a similar measure for being unconstitutional[,] it is high-time that we, too,
should follow suit" is misplaced and unwarranted.70
Accordingly, our assailed Decision’s submission that the right to run for public office is "inextricably
linked" with two fundamental freedoms – those of expression and association – lies on barren
ground. American case law has in fact never recognized a fundamental right to express one’s
political views through candidacy,71 as to invoke a rigorous standard of review.72 Bart v.
Telford73 pointedly stated that "[t]he First Amendment does not in terms confer a right to run for
public office, and this court has held that it does not do so by implication either." Thus, one’s interest
in seeking office, by itself, is not entitled to constitutional protection.74 Moreover, one cannot bring
one’s action under the rubric of freedom of association, absent any allegation that, by running for an
elective position, one is advancing the political ideas of a particular set of voters.75
Prescinding from these premises, it is crystal clear that the provisions challenged in the case at bar,
are not violative of the equal protection clause. The deemed-resigned provisions substantially serve
governmental interests (i.e., (i) efficient civil service faithful to the government and the people rather
than to party; (ii) avoidance of the appearance of "political justice" as to policy; (iii) avoidance of the
danger of a powerful political machine; and (iv) ensuring that employees achieve advancement on
their merits and that they be free from both coercion and the prospect of favor from political activity).
These are interests that are important enough to outweigh the non-fundamental right of appointive
officials and employees to seek elective office. 1avvphi1
En passant, we find it quite ironic that Mr. Justice Nachura cites Clements v. Fashing76 and Morial, et
al. v. Judiciary Commission of the State of Louisiana, et al.77 to buttress his dissent. Maintaining that
resign-to-run provisions are valid only when made applicable to specified officials, he explains:
…U.S. courts, in subsequent cases, sustained the constitutionality of resign-to-run provisions when
applied to specified or particular officials, as distinguished from all others,78 under a classification that
is germane to the purposes of the law. These resign-to-run legislations were not expressed in a
general and sweeping provision, and thus did not violate the test of being germane to the purpose of
the law, the second requisite for a valid classification. Directed, as they were, to particular officials,
they were not overly encompassing as to be overbroad. (emphasis in the original)
This reading is a regrettable misrepresentation of Clements and Morial. The resign-to-run provisions
in these cases were upheld not because they referred to specified or particular officials (vis-à-vis a
general class); the questioned provisions were found valid precisely because the Court deferred to
legislative judgment and found that a regulation is not devoid of a rational predicate simply because
it happens to be incomplete. In fact, the equal protection challenge in Clements revolved around the
claim that the State of Texas failed to explain why some public officials are subject to the resign-to-
run provisions, while others are not. Ruled the United States Supreme Court:
Article XVI, § 65, of the Texas Constitution provides that the holders of certain offices automatically
resign their positions if they become candidates for any other elected office, unless the unexpired
portion of the current term is one year or less. The burdens that § 65 imposes on candidacy are
even less substantial than those imposed by § 19. The two provisions, of course, serve essentially
the same state interests. The District Court found § 65 deficient, however, not because of the nature
or extent of the provision's restriction on candidacy, but because of the manner in which the offices
are classified. According to the District Court, the classification system cannot survive equal
protection scrutiny, because Texas has failed to explain sufficiently why some elected public officials
are subject to § 65 and why others are not. As with the case of § 19, we conclude that § 65 survives
a challenge under the Equal Protection Clause unless appellees can show that there is no rational
predicate to the classification scheme.
The history behind § 65 shows that it may be upheld consistent with the "one step at a time"
approach that this Court has undertaken with regard to state regulation not subject to more vigorous
scrutiny than that sanctioned by the traditional principles. Section 65 was enacted in 1954 as a
transitional provision applying only to the 1954 election. Section 65 extended the terms of those
offices enumerated in the provision from two to four years. The provision also staggered the terms of
other offices so that at least some county and local offices would be contested at each election. The
automatic resignation proviso to § 65 was not added until 1958. In that year, a similar automatic
resignation provision was added in Art. XI, § 11, which applies to officeholders in home rule cities
who serve terms longer than two years. Section 11 allows home rule cities the option of extending
the terms of municipal offices from two to up to four years.
Thus, the automatic resignation provision in Texas is a creature of the State's electoral reforms of
1958. That the State did not go further in applying the automatic resignation provision to those
officeholders whose terms were not extended by § 11 or § 65, absent an invidious purpose, is not
the sort of malfunctioning of the State's lawmaking process forbidden by the Equal Protection
Clause. A regulation is not devoid of a rational predicate simply because it happens to be
incomplete. The Equal Protection Clause does not forbid Texas to restrict one elected officeholder's
candidacy for another elected office unless and until it places similar restrictions on other
officeholders. The provision's language and its history belie any notion that § 65 serves the invidious
purpose of denying access to the political process to identifiable classes of potential candidates.
(citations omitted and italics supplied)
Furthermore, it is unfortunate that the dissenters took the Morial line that "there is no blanket
approval of restrictions on the right of public employees to become candidates for public office" out
of context. A correct reading of that line readily shows that the Court only meant to confine its ruling
to the facts of that case, as each equal protection challenge would necessarily have to involve
weighing governmental interests vis-à-vis the specific prohibition assailed. The Court held:
The interests of public employees in free expression and political association are unquestionably
entitled to the protection of the first and fourteenth amendments. Nothing in today's decision should
be taken to imply that public employees may be prohibited from expressing their private views on
controversial topics in a manner that does not interfere with the proper performance of their public
duties. In today's decision, there is no blanket approval of restrictions on the right of public
employees to become candidates for public office. Nor do we approve any general restrictions on
the political and civil rights of judges in particular. Our holding is necessarily narrowed by the
methodology employed to reach it. A requirement that a state judge resign his office prior to
becoming a candidate for non-judicial office bears a reasonably necessary relation to the
achievement of the state's interest in preventing the actuality or appearance of judicial impropriety.
Such a requirement offends neither the first amendment's guarantees of free expression and
association nor the fourteenth amendment's guarantee of equal protection of the laws. (italics
supplied)
Indeed, the Morial court even quoted Broadrick and stated that:
In any event, the legislature must have some leeway in determining which of its employment
positions require restrictions on partisan political activities and which may be left unregulated. And a
State can hardly be faulted for attempting to limit the positions upon which such restrictions are
placed. (citations omitted)
V.
Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the Omnibus Election
Code Do Not Suffer from Overbreadth
Apart from nullifying Section 4(a) of Resolution 8678, Section 13 of RA 9369, and Section 66 of the
Omnibus Election Code on equal protection ground, our assailed Decision struck them down for
being overbroad in two respects, viz.:
(1) The assailed provisions limit the candidacy of all civil servants holding appointive posts
without due regard for the type of position being held by the employee seeking an elective
post and the degree of influence that may be attendant thereto;79 and
(2) The assailed provisions limit the candidacy of any and all civil servants holding appointive
positions without due regard for the type of office being sought, whether it be partisan or
nonpartisan in character, or in the national, municipal or barangay level.
Again, on second look, we have to revise our assailed Decision.
i. Limitation on Candidacy Regardless of Incumbent Appointive Official’s Position, Valid
According to the assailed Decision, the challenged provisions of law are overly broad because they
apply indiscriminately to all civil servants holding appointive posts, without due regard for the type of
position being held by the employee running for elective office and the degree of influence that may
be attendant thereto.
Its underlying assumption appears to be that the evils sought to be prevented are extant only when
the incumbent appointive official running for elective office holds an influential post.
Such a myopic view obviously fails to consider a different, yet equally plausible, threat to the
government posed by the partisan potential of a large and growing bureaucracy: the danger of
systematic abuse perpetuated by a "powerful political machine" that has amassed "the scattered
powers of government workers" so as to give itself and its incumbent workers an "unbreakable grasp
on the reins of power."80 As elucidated in our prior exposition:81
Attempts by government employees to wield influence over others or to make use of their respective
positions (apparently) to promote their own candidacy may seem tolerable – even innocuous –
particularly when viewed in isolation from other similar attempts by other government employees.
Yet it would be decidedly foolhardy to discount the equally (if not more) realistic and dangerous
possibility that such seemingly disjointed attempts, when taken together, constitute a veiled effort on
the part of an emerging central party structure to advance its own agenda through a "carefully
orchestrated use of [appointive and/or elective] officials" coming from various levels of the
bureaucracy.
…[T]he avoidance of such a "politically active public work force" which could give an emerging
political machine an "unbreakable grasp on the reins of power" is reason enough to impose a
restriction on the candidacies of all appointive public officials without further distinction as to the type
of positions being held by such employees or the degree of influence that may be attendant thereto.
(citations omitted)
ii. Limitation on Candidacy Regardless of Type of Office Sought, Valid

The assailed Decision also held that the challenged provisions of law are overly broad because they
are made to apply indiscriminately to all civil servants holding appointive offices, without due regard
for the type of elective office being sought, whether it be partisan or nonpartisan in character, or in
the national, municipal or barangay level.
This erroneous ruling is premised on the assumption that "the concerns of a truly partisan office and
the temptations it fosters are sufficiently different from those involved in an office removed from
regular party politics [so as] to warrant distinctive treatment,"82 so that restrictions on candidacy akin
to those imposed by the challenged provisions can validly apply only to situations in which the
elective office sought is partisan in character. To the extent, therefore, that such restrictions are said
to preclude even candidacies for nonpartisan elective offices, the challenged restrictions are to be
considered as overbroad.
Again, a careful study of the challenged provisions and related laws on the matter will show that the
alleged overbreadth is more apparent than real. Our exposition on this issue has not been
repudiated, viz.:
A perusal of Resolution 8678 will immediately disclose that the rules and guidelines set forth therein
refer to the filing of certificates of candidacy and nomination of official candidates of registered
political parties, in connection with the May 10, 2010 National and Local Elections.83 Obviously, these
rules and guidelines, including the restriction in Section 4(a) of Resolution 8678, were issued
specifically for purposes of the May 10, 2010 National and Local Elections, which, it must be noted,
are decidedly partisan in character. Thus, it is clear that the restriction in Section 4(a) of RA 8678
applies only to the candidacies of appointive officials vying for partisan elective posts in the May 10,
2010 National and Local Elections. On this score, the overbreadth challenge leveled against Section
4(a) is clearly unsustainable.
Similarly, a considered review of Section 13 of RA 9369 and Section 66 of the Omnibus Election
Code, in conjunction with other related laws on the matter, will confirm that these provisions are
likewise not intended to apply to elections for nonpartisan public offices.
The only elections which are relevant to the present inquiry are the elections for barangay offices,
since these are the only elections in this country which involve nonpartisan public offices.84
In this regard, it is well to note that from as far back as the enactment of the Omnibus Election Code
in 1985, Congress has intended that these nonpartisan barangay elections be governed by special
rules, including a separate rule on deemed resignations which is found in Section 39 of the Omnibus
Election Code. Said provision states:
Section 39. Certificate of Candidacy. – No person shall be elected punong barangay or kagawad ng
sangguniang barangay unless he files a sworn certificate of candidacy in triplicate on any day from
the commencement of the election period but not later than the day before the beginning of the
campaign period in a form to be prescribed by the Commission. The candidate shall state the
barangay office for which he is a candidate.
xxxx
Any elective or appointive municipal, city, provincial or national official or employee, or those in the
civil or military service, including those in government-owned or-controlled corporations, shall be
considered automatically resigned upon the filing of certificate of candidacy for a barangay office.
Since barangay elections are governed by a separate deemed resignation rule, under the present
state of law, there would be no occasion to apply the restriction on candidacy found in Section 66 of
the Omnibus Election Code, and later reiterated in the proviso of Section 13 of RA 9369, to any
election other than a partisan one. For this reason, the overbreadth challenge raised against Section
66 of the Omnibus Election Code and the pertinent proviso in Section 13 of RA 9369 must also fail. 85
In any event, even if we were to assume, for the sake of argument, that Section 66 of the Omnibus
Election Code and the corresponding provision in Section 13 of RA 9369 are general rules that apply
also to elections for nonpartisan public offices, the overbreadth challenge would still be futile. Again,
we explained:
In the first place, the view that Congress is limited to controlling only partisan behavior has not
received judicial imprimatur, because the general proposition of the relevant US cases on the matter
is simply that the government has an interest in regulating the conduct and speech of its employees
that differs significantly from those it possesses in connection with regulation of the speech of the
citizenry in general.86
Moreover, in order to have a statute declared as unconstitutional or void on its face for being overly
broad, particularly where, as in this case, "conduct" and not "pure speech" is involved, the
overbreadth must not only be real, but substantial as well, judged in relation to the statute’s plainly
legitimate sweep.87
In operational terms, measuring the substantiality of a statute’s overbreadth would entail, among
other things, a rough balancing of the number of valid applications compared to the number of
potentially invalid applications.88 In this regard, some sensitivity to reality is needed; an invalid
application that is far-fetched does not deserve as much weight as one that is probable.89 The
question is a matter of degree.90 Thus, assuming for the sake of argument that the partisan-
nonpartisan distinction is valid and necessary such that a statute which fails to make this distinction
is susceptible to an overbreadth attack, the overbreadth challenge presently mounted must
demonstrate or provide this Court with some idea of the number of potentially invalid elections (i.e.
the number of elections that were insulated from party rivalry but were nevertheless closed to
appointive employees) that may in all probability result from the enforcement of the statute.91
The state of the record, however, does not permit us to find overbreadth. Borrowing from the words
of Magill v. Lynch, indeed, such a step is not to be taken lightly, much less to be taken in the
dark,92 especially since an overbreadth finding in this case would effectively prohibit the State from
‘enforcing an otherwise valid measure against conduct that is admittedly within its power to
proscribe.’93
This Court would do well to proceed with tiptoe caution, particularly when it comes to the application
of the overbreadth doctrine in the analysis of statutes that purportedly attempt to restrict or burden
the exercise of the right to freedom of speech, for such approach is manifestly strong medicine that
must be used sparingly, and only as a last resort.94
In the United States, claims of facial overbreadth have been entertained only where, in the judgment
of the court, the possibility that protected speech of others may be muted and perceived grievances
left to fester (due to the possible inhibitory effects of overly broad statutes) outweighs the possible
harm to society in allowing some unprotected speech or conduct to go unpunished.95 Facial
overbreadth has likewise not been invoked where a limiting construction could be placed on the
challenged statute, and where there are readily apparent constructions that would cure, or at least
substantially reduce, the alleged overbreadth of the statute.96
In the case at bar, the probable harm to society in permitting incumbent appointive officials to remain
in office, even as they actively pursue elective posts, far outweighs the less likely evil of having
arguably protected candidacies blocked by the possible inhibitory effect of a potentially overly broad
statute.
a1f
In this light, the conceivably impermissible applications of the challenged statutes – which are, at
best, bold predictions – cannot justify invalidating these statutes in toto and prohibiting the State
from enforcing them against conduct that is, and has for more than 100 years been, unquestionably
within its power and interest to proscribe.97 Instead, the more prudent approach would be to deal with
these conceivably impermissible applications through case-by-case adjudication rather than through
a total invalidation of the statute itself.98
Indeed, the anomalies spawned by our assailed Decision have taken place. In his Motion for
Reconsideration, intervenor Drilon stated that a number of high-ranking Cabinet members had
already filed their Certificates of Candidacy without relinquishing their posts.99 Several COMELEC
election officers had likewise filed their Certificates of Candidacy in their respective
provinces.100 Even the Secretary of Justice had filed her certificate of substitution for representative
of the first district of Quezon province last December 14, 2009101 – even as her position as Justice
Secretary includes supervision over the City and Provincial Prosecutors,102 who, in turn, act as Vice-
Chairmen of the respective Boards of Canvassers.103 The Judiciary has not been spared, for a
Regional Trial Court Judge in the South has thrown his hat into the political arena. We cannot allow
the tilting of our electoral playing field in their favor.
For the foregoing reasons, we now rule that Section 4(a) of Resolution 8678 and Section 13 of RA
9369, which merely reiterate Section 66 of the Omnibus Election Code, are not unconstitutionally
overbroad.
IN VIEW WHEREOF, the Court RESOLVES to GRANT the respondent’s and the intervenors’
Motions for Reconsideration; REVERSE and SET ASIDE this Court’s December 1, 2009 Decision;
DISMISS the Petition; and ISSUE this Resolution declaring as not UNCONSTITUTIONAL (1)
Section 4(a) of COMELEC Resolution No. 8678, (2) the second proviso in the third paragraph of
Section 13 of Republic Act No. 9369, and (3) Section 66 of the Omnibus Election Code.
SO ORDERED.
REYNATO S. PUNO
Chief Justice
THIRD DIVISION
[G.R. No. 78623 : December 17, 1990.]
192 SCRA 326
DR. OFELIA P. TRISTE, Petitioner, vs. LEYTE STATE COLLEGE BOARD OF TRUSTEES,
namely: Hon. Lourdes R. Quisumbing, Secretary of the Department of Education,
Culture and Sports and Chairman of the Board and/or Dr. Minda C. Sutaria as the
authorized representative; Dr. Purificacion M. Flores, President of the Leyte State
College and Vice-Chairman of the Board; Director Venancio Baclagon, National
Economic and Development Authority, Regional Office No. VIII and Member of the
Board; HON. SEDFREY A. ORDOÑEZ, Secretary of Justice and Chairman of the
Review Committee under Executive Order No. 17; and DR. CRES V. CHAN-
GONZAGA, Respondents.

DECISION

FERNAN, J.:

The instant petition for Certiorari focuses on the vice-presidency of the Leyte State College
in Tacloban City. It seeks to annul and set aside the decision of the Board of Trustees of
said College ousting and replacing herein petitioner with private respondent as Vice-
President thereof, as well as the resolution of the Review Committee under Executive Order
No. 17 dismissing petitioner's appeal thereto.
The Leyte State College, formerly the Leyte Normal School, one of the eight normal schools
established in the Philippines as a teacher-training institution serving Eastern Visayas,
Masbate and Surigao, became a chartered state college by virtue of Presidential Decree No.
944 dated June 14, 1976 (72 O.G. 7207). Section 4 of the decree provides that "the
governance and administration of each College and the exercise of its corporate powers
shall be vested exclusively in the Board of Trustees and in the President of the College
insofar as authorized by said Board". In addition to its general powers of administration,
Section 6 provides that the Board shall have the power and duty:
"(c) To appoint, on recommendation of the President of each College, a Vice-President for
Academic Affairs and Development with a position next in rank to the President of the
College who shall assist in the administration and supervision of the College and who shall
automatically assume the presidency of the College in an acting capacity, with full powers
and duties, in the absence of the President or when the office of the president is vacant."
(Italics supplied)
Under Section 9 of the same decree, the vice-president for academic affairs shall also be a
member of the College Council which is vested with the powers to prescribe the curricula
and the rules of discipline subject to the approval of the Board of Trustees; to fix the
requirements for admission to the college as well as for graduation and the receiving of a
degree; to recommend students or others to be the recipients of degrees or honors; and,
through its president or committee, to have disciplinary control over the students within the
prescribed rules of discipline approved by the Board of Trustees.
: nad
Two years later or on June 10, 1978, Presidential Decree No. 1437 (74 O.G. 5733-LLLLL
Supp.) was promulgated to define the composition and powers of the governing boards of
chartered state universities and colleges and the term of office of the presidents thereof.
Said governing boards shall be composed of the Secretary of Education and Culture as
chairman, the president of the university or college as vice-chairman, and a representative
of the National Economic and Development Authority (NEDA) and two (2) prominent citizens
as members.
One of the governing board's specific powers as laid out in Section 3 of P.D. 1437 is the
following:
"f. To confirm appointments of vice-presidents, deans, directors, registrars, heads of
departments, professors, and other officials and employees of the university or college
made by the president, to fix their compensation, hours of service, and such other duties
and conditions as the governing boards may promulgate, in accordance with the provisions
of existing laws; to remove them for cause after investigation and hearing." (Emphasis
supplied)
Under the foregoing legal milieu, on February 3, 1984, the Leyte State College Board of
Trustees (hereinafter referred to as the Board) took up the matter of the designation of
herein petitioner as vice-president of the college with a basic salary of P39,288 plus
representation and transportation allowances. It passed Resolution No. 53 "confirming the
designation of Professor Ofelia TRISTE as vice-president of LSC to include allowances
normally extended to the office of vice-president subject to the usual auditing and
accounting regulations." 1 Accordingly, the acting chairman of the Board issued the
following document:
"Republic of the Philippines
MINISTRY OF EDUCATION CULTURE AND SPORTS
Metro Manila
February 3, 1984
KNOW ALL MEN BY THESE PRESENTS:
Pursuant to Section 6, paragraph "C" of PD 944 known as the LSC Charter, DR. OFELIA P.
TRISTE is hereby designated/appointed Vice-President for Academic Affairs and
Development of the Leyte State College, Tacloban City, Philippines.
The Board of Trustees Leyte
State College
Tacloban City
By: (SGD.) VEDASTO G. SUAREZ
Acting Chairman" 2
As petitioner was then holding an appointment of Professor 6, the president of the college
sought clarification from the Minister of the Budget on the total compensation of the vice-
president. The then Minister of Budget, Manuel S. Alba, in a letter dated June 22, 1984,
opined that "(p)ursuant to Sections 4.1 and 4.4 of NCC No. 12-B, a Vice-President may be
designated in lieu of a permanent plantilla position, provided that the designee's basic
salary plus honorarium shall not exceed the salary prescribed for a permanently appointed
Vice-President, as specified by NCC No. 12." Hence, the total compensation of petitioner
should consist of the basic salary of P41,292 and an honorarium of P4,548 or the total
amount of P45,840. In addition to that amount, the vice-president was authorized to receive
commutable transportation and representation allowances of P475 per month subject to
conditions stated therein. 3
In October, 1984, the Office of Compensation and Position Classification furnished the then
President of the college, Magdalena S. Ramo, with an advance copy of the personnel
services itemization of the college which would be the basis for the preparation of its
plantilla of personnel for calendar year 1984. 4 The position of vice-president does not
appear in said itemization. 5 However, per the college's plantilla of personnel for 1984,
petitioner's position was designated and classified as "Professor 6 (Vice-Pres.)" receiving an
actual salary of P54,600 as of June 30, 1984 but which salary was adjusted to P55,644
effective July 1, 1984. 6
For more than two years, petitioner discharged her duties and functions as vice-president of
the college.
In February 1986, there was a total revamp in the composition of the Board of Trustees of
the Leyte State College. Among others, Dr. Purificacion M. Flores was designated officer-in-
charge and later appointed as the new College President vice Magdalena S. Remo who
retired as president of the college on May 1, 1986.
Anticipating moves to replace her as vice-president, on July 18, 1986, petitioner submitted
to the Board of Trustees a position paper ** asserting that the Board could not appoint a
vice-president because the position was not vacant, the vice-president's term was not co-
terminous with that of the recommending president who had retired, and the incumbent
was not replaceable at the pleasure of the Board. In fact, she stated therein that she is
qualified for the college presidency. 7
Petitioner's apprehensions were proved right by later developments. She was not named to
any of the committees formed by Dr. Flores when the latter became the officer-in-charge of
the office of the president. 8 On August 21, 1986, petitioner received a letter from
President Flores assigning her the job of director of the college's research program. 9 A
week later, petitioner received another letter from President Flores. It states:
"August 29, 1986
Dr. Ofelia P. Triste
Leyte State College
Tacloban City
Dear Dr. TRISTE:
This is to inform you that Resolution No. 42, s. 1986 was approved by the Board of Trustees
of the College at its Board Meeting last August 19, 1986 at MECS, Manila and confirmed
August 27, 1986, to wit:
RES. NO. 42, s. 1986
APPROVING THE DESIGNATION OF DR. CRES GONZAGA AS VICE-PRESIDENT OF THE LEYTE
STATE COLLEGE EFFECTIVE AUGUST 19, 1986.
APPROVED
This information is intended to clarify actions taken by this office on designations.
Very truly yours,
(SGD.)
PURIFICACION M. FLORES
President" 10
Alleging that the appointment of Dr. Crescencia (Cres) V. Chan-Gonzaga to the position of
vice-president in effect eased her out of said position, petitioner filed before the Board a
petition for reconsideration. She contended that her constitutional and legal rights to
security of tenure had been violated. 11 In response thereto, the Board Secretary informed
petitioner's counsel through a letter dated October 29, 1986 that her petition was "noted
and discussed" by the Board but that the members present at the meeting, namely, Dr.
Minda Sutaria, Dr. Flores and Director Venancio Baclagon, arrived at the consensus that the
position of vice-president being "honorific," the incumbent president of the college had the
prerogative to recommend for the vice-presidency the nominee of the executive council. The
letter added that the position being "considered co-terminous with that of the President of
the college," pursuant to Executive Order No. 17, petitioner's services as vice-president
were in effect terminated with the Board's approval of the appointment of Dr. Gonzaga to
said position. 12
From November 26, 1986 to January 7, 1987, petitioner's counsel wrote three letters to the
secretary of the Board and a letter to President Flores herself, all requesting for official
copies of the board resolution terminating the services of petitioner as college vice-
president, the board resolution appointing Dr. Gonzaga as vice-president, and the board
resolution or decision denying petitioner's petition for reconsideration, for the purpose of
filing an appeal to the Minister of Justice. 13 Said letter-requests were unheeded.:-cralaw
On January 12, 1987, petitioner interposed an appeal despite non-receipt of the requested
documents, to the Review Committee of the Ministry of Justice which was organized to
implement Executive Order No. 17 prescribing rules and regulations for the implementation
of Section 2, Article III of the Freedom Constitution. She alleged therein that since her
ouster as vice-president, she had been demoted to the position of Director of Research and
that the 20% salary increase granted to all academic personnel of government schools was
not given to her because under the plantilla approved by the Office of Budget and
Management, her salary was reduced by one step since she was no longer the college vice-
president. She argued that she was terminated and stripped of her rank and status without
legal cause and due process; that the Board's claim that the position of vice-president is
"honorific" is not supported by law; that said position is not co-terminous with the position
of president not only because the charter is silent on the matter but also because the
charter provides that a vice-president automatically assumes the presidency when it is
vacant; and that the Board may not designate or appoint anyone to the position of vice-
president as the same was not vacant.
The therein respondent Board not having filed any responsive pleading to the brief filed by
petitioner before the Review Committee, she filed three successive motions for judgment on
the pleadings. It turned out, however, that on January 23, 1987, the Review Committee ***
had issued a resolution on petitioner's appeal but a copy of the same was furnished her
through the mail only on March 31, 1987. 14
In said resolution, the Review Committee dismissed petitioner's petition on the ground that
it was filed beyond the 10-day period provided for in Section 6 of Executive Order No. 17.
15
After her requests for certified copies of the designation of Dr. Gonzaga as vice-president
and the board resolution denying her petition for reconsideration remained unacted upon,
Dr. Ofelia P. TRISTE filed the instant petition for Certiorari.
A preliminary point to consider is the propriety of the instant petition. Private respondent
Gonzaga asserts that petitioner, not having appealed to the president, had not exhausted all
administrative remedies available to her before she filed the instant judicial remedy.
As we earlier held, exhaustion of administrative remedies is not an iron-clad rule. It is not
necessary when, from the facts of the case, petitioner has to look to the courts for speedy
relief; when the question presented is "purely a legal one," the controverted act is "patently
illegal" and "nothing of an administrative nature is to be or can be done;" and when
petitioner was denied due process. 16 Each of these exceptions may exempt the petitioner
from the rule on exhaustion of administrative remedies before filing a court action.
Considering that all these exceptions are present in this case, petitioner may avail herself of
the instant remedy. :-cralaw
Although the petition is captioned "petition for review on Certiorari" 17 thereby creating the
impression that the same was filed under Rule 45 of the Rules of Court, we shall consider it
as one for Certiorari under Rule 65 it having been alleged that the respondents have abused
their discretion in their questioned actions. 18
The resolution of the issue on whether petitioner was illegally ousted from her position as
vice-president of the Leyte State College hinges on the determination of her status as such
official. Private respondent Dr. Gonzaga and public respondent Dr. Flores **** contend that
petitioner was merely "designated" and not "appointed" to the college vice-presidency. They
aver that petitioner's "designation" to said position was "purely an internal arrangement
which does not require the approval or confirmation by the Civil Service Commission." 19
They maintain that petitioner's term of office being co-terminous with that of the retired
college president, petitioner may not complain that she was illegally dismissed from the
vice-presidency. On the other hand, petitioner asserts that she was the duly appointed vice-
president of the college and hence, her right to security of tenure may not be
unceremoniously abridged.
In Borromeo v. Mariano, 20 this Court, through Justice Malcolm, noted that "(a)ll authorities
unite in saying that the term 'appoint' is well-known and whether regarded in its legal or in
its ordinary acceptation, is applied to the nomination or designation of an individual." We
defined "appointment" in Aparri v. Court of Appeals 21 as the "act of designation by the
executive officer, board or body, to whom that power has been delegated, of the individual
who is to exercise the functions of a given office." On the other hand, there is jurisprudence
to the effect that the word "designate," when used by the appointing power in making an
appointment to office, is equivalent to the word "appoint." 22
Common usage, however, oftentimes puts a distinction between the terms "appointment"
and designation". Perhaps, the reason for this is that the word "appointment" connotes
permanency while "designation" implies temporariness. Thus, to "designate" a public officer
to another position may mean to vest him with additional duties while he performs the
functions of his permanent office. Or, in some cases, a public officer may be "designated" to
a position in an acting capacity as when an Undersecretary is designated to discharge the
functions of a Secretary pending the appointment of a permanent Secretary.
The provisions of Presidential Decrees Nos. 944 and 1437, specifically the aforequoted
sections, contemplate of a duly appointed vice-president by the Board of Trustees, who
would be a working vice-president with full powers and duties and whose compensation,
hours of service and other duties and conditions of employment should be set by said
Board.
Thus, P.D. 1437 specifically provides among others, the following:
"Section 3 . . . the governing board shall have the following specific powers and duties:
x x x
f. to confirm the appointments of vice-presidents, . . . in accordance with the provisions of
existing laws; to remove them for cause after investigation and hearing."
It appears that these provisions of law notwithstanding, it was not until February 3, 1984
that a Vice-President for Leyte State College was named with the designation of herein
petitioner to said position. The mode of authorization was by "designation" inasmuch as the
position of Vice-President did not appear in the College's Personnel Services Itemization for
the year 1984. 23 This omission was, however, corrected in the Plantilla of Personnel and
Salary Adjustment Form of the Leyte State College for the same calendar year 1984, which
listed as Item No. 2-1 the position of "Professor 6 (Vice-President)." Herein petitioner was
listed as the incumbent with an actual salary as of June 30, 1984 of P45,600.00 per annum
and an adjusted salary effective July 1, 1984 per NCC #33 of P55,644.00 per annum. It is
to be noted that the College Plantilla carried other Professor 6 items, i.e. Items Nos. 2-2, 2-
4 and 2-5, with an actual salary of P43,392.00 per annum as of June 30, 1984 and an
adjusted salary of P52,944.00 as of July 1, 1984. 24
Thereafter, on December 27, 1985, herein petitioner was extended an appointment as
"Professor 6" . . . "with compensation at the rate of FIFTY FIVE THOUSAND SIX HUNDRED
FORTY FOUR (55,644) ONLY pesos per annum effective July 01, 1984." The position to be
filled was listed as "Old Item No. 2-1 Page 1 Approp. Act 230 Page CY 1983, New Item No.
2-1 Page 1 Approp. Act (illegible) CY 1984," which is equivalent to the item designated as
"Professor 6 (Vice-President)" in the Plantilla of Personnel for 1984. Said appointment was
issued "By authority of the Board of Trustees" and approved by the Civil Service
Commission as permanent. 25
From the foregoing, it becomes clear that while initially petitioner was discharging the
powers and functions of Vice-President upon a designation made on February 3, 1984, by
July 1 of the same year, she was doing so by virtue of an appointment. For while her
appointment paper mentioned only "Professor 6" as the position to which she was being
appointed, the clear intent to appoint her "Professor 6 (Vice-President)," as distinguished
from the other Professor 6 items is manifest from the rate of compensation and Item
Number specifically given in the appointment paper. Moreover, there appears no reason
why she should be given another appointment to the position of Professor 6 if the intention
was for her to remain merely as Professor 6. The only plausible explanation is that it was an
appointment to a new item of Vice-President. And as adverted to earlier, said appointment
was approved by the Civil Service Commission as permanent. - nad
Although under Section 8 of P.D. 1437, the term of a state college president is six (6) years,
the same law is silent as to that of the vice-president. Such silence, however, should not be
interpreted to mean that the law intends to give the vice-president the same term as that of
a president. On the contrary, there are indications in the decrees themselves that the vice-
president is a career official whose term of office may outlast that of the president. Thus,
under Section 6(c) of P.D. 944, the vice-president is next in ranks to the president. He or
she shall assist the president in the administration and supervision of the college. He or she
shall "assume the presidency of the College in an acting capacity, with full powers and
duties in the absence or when the office of the president is vacant." Whoever is holding the
position of vice-president shall remain as such until, under Section 3(f) of P.D. 1437 above-
quoted, the Board finds a reason or reasons to remove him "for cause after investigation
and hearing."
The contention of respondents Gonzaga and Flores that petitioner was not a permanently
appointed vice-president since she was merely receiving an honorarium for the job, is
likewise without merit. Under the same Section 3(f) of P.D. 1437, the Board has the power
to fix the compensation of the vice-president. Accordingly, during its meeting on February
3, 1984, the Board set petitioner's basic salary as vice-president at P39,288 plus
representation and transportation allowances. However, since petitioner was then holding
an appointment as Professor 6, the then college president sought the aforestated opinion of
the Minister of Budget granting petitioner an honorarium of P4,548. Such inquiry, it must be
noted, was done in connection with Resolution No. 5, s. 1984, or while petitioner was
discharging the functions of Vice-President upon a designation. In contrast, her
compensation as Professor 6 (Vice-President) was specifically stated in her appointment
paper. The allegation of private respondents that petitioner was receiving only an
honorarium and not a regular salary as Vice-President is therefore true only for the period
February 3 to June 30, 1984. Thereafter, by virtue of her appointment, petitioner began
receiving a compensation of P55,644.00 per annum as Professor 6 (Vice-President).
Mechem states that "(l)ike the requirement of an oath, the fact of the payment of a salary
and/or fees may aid in determining the nature of a position, but it is not conclusive, for
while a salary or fees are usually annexed to the office, it is not necessarily so. As in the
case of the oath, the salary or fees are mere incidents and form no part of the office. Where
a salary or fees are annexed, the office is often said to be coupled with an interest; where
neither is provided for it is a naked or honorary office, and is supposed to be accepted
merely for the public good." 26
In the case at bar, petitioner having been given the compensation attached to the Item
Professor 6 (Vice-President) as distinguished from the other Professor 6 items which carried
a lower salary, we hold that her appointment dated December 27, 1985, but retroactive to
July 1, 1984 was in truth and in fact to the position of Vice-President, rather than to the
position of Professor 6.
This case should be distinguished from Laxamana v. Borlaza 27 wherein we held that
petitioner was legally removed because she was merely designated as Director of
Publications and not by permanent appointment since there was no position in the college
plantilla to which a permanent appointment could be made. In said case, there was no
statutory basis for the inclusion of the position of Director of Publications in the plantilla of
the college as it was merely created by the Board. In the instant case, the position of vice-
president is based on a presidential decree which has the force and effect of law. But
because said position was omitted in the personnel services itemization, the college could
do no more than classify petitioner's position as "Professor 6 (Vice-Pres.)"
The nature of petitioner's appointment having been established, we now consider the
legality of her replacement as vice-president of the Leyte State College. :-cralaw
Executive Order No. 17 was issued by the President on May 28, 1986 "to obviate
unnecessary anxiety and demoralization among the deserving officials and employees,
particularly in the career civil service" (82 O.G. 2423-2424). Section 1 thereof provides that
separation or replacement of officers and employees shall be made "only for justifiable
reasons". For its purposes, a state college is considered a ministry. Pertinent provisions of
the Order state:
"Sec. 2. The Ministry Head concerned, on the basis of such review and assessment, shall
determine who shall be separated from the service. Thereafter, he shall issue to the official
or employee concerned a notice of separation which shall indicate therein the reason/s or
ground/s for such separation and the fact that the separated official or employee has the
right to file a petition for reconsideration pursuant to this Order. Separation from the service
shall be effective upon receipt of such notice, either personally by the official or employee
concerned or on his behalf by a person of sufficient discretion.
"SEC. 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 Ministry 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." (Emphasis supplied)
Petitioner learned of her removal as vice-president when it was already a fait accompli.
Hence, all she could do under the circumstances was to petition for the reconsideration of
the Board resolution designating respondent Gonzaga as her replacement and at the same
time asserting her constitutional right to security of tenure.
The Board's "noting" of her petition is not a valid exercise of its power. 28 Although the
Board Secretary's letter stating that the petition for reconsideration was noted and
discussed by the Board, the latter's reason for replacing petitioner, to wit, the position of
vice-president is "honorific" and co-terminous with that of the college president is not within
the purview of Section 3 aforequoted. - nad
Furthermore, respondent Flores and the Board had not complied with the procedure set
forth in Section 2 of Executive Order No. 17. They did not serve the notice of separation
specified therein. In fact, the cavalier manner by which petitioner was dislodged from the
vice-presidency was matched by the college officials' refusal to furnish petitioner with copies
of the documents pertinent to her appeal. Even if respondent Gonzaga's unsubstantial
allegations on petitioner's association with the Romualdezes of Leyte 29 were true,
certainly, it is not within the spirit of Executive Order No. 17 to brush aside its due process
requirements just to implement its ultimate purpose which is to rid the government of
misfits.
On top of these, the review committee seems to have been too technical in treating
petitioner's appeal. Its denial of petitioner's plea for reconsideration on the ground that the
10-day period specified in Section 6 of said order had lapsed is tantamount to abuse of
discretion it appearing that said period had not commenced to run. We agree with the
Solicitor General that the letters embodying the resolutions replacing petitioner as vice-
president, do not, in legal contemplation, constitute the notice of separation from which an
appeal could be made. 30 The existence of said resolutions should have been established by
official or certified true copies but unfortunately, respondent Flores herself and the Board
secretary failed to heed petitioner's requests for them.
WHEREFORE, the petition for Certiorari is GRANTED and the IMMEDIATE REINSTATEMENT of
petitioner with backwages to the position of vice-president of the Leyte State College is
hereby ordered. No costs.
SO ORDERED.
Gutierrez, Jr. and Bidin, JJ., concur.
Feliciano, J., is on leave.
THIRD DIVISION
[G.R. No. 114795. July 17, 1996.]
LUCITA Q. GARCES, Petitioner, v. THE HONORABLE COURT OF APPEALS,

SALVADOR EMPEYNADO and CLAUDIO CONCEPCION, Respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; LAW OF PUBLIC OFFICERS; A TRANSFER WITHOUT

CONSENT IS TANTAMOUNT TO REMOVAL. — A transfer requires a prior appointment. If
the transfer was made without the consent of the official concerned, it is tantamount to
removal without valid cause contrary to the fundamental guarantee on non-removal
except for cause.
2. ID.; ID.; ACCEPTANCE; INDISPENSABLE TO COMPLETE AN APPOINTMENT. —

Acceptance, it must be emphasized, is indispensable to complete an appointment.
3. ID.; ID.; THERE CAN BE NO APPOINTMENT TO A NON-VACANT POSITION. — It is a

basic precept in the law of public officers that "no person, no matter how qualified and
eligible he is for a certain position may be appointed to an office which is not vacant.
There can be no appointment to a non-vacant position. The incumbent must first be
legally removed, or his appointment validly terminated before one could be validly
installed to succeed him.
4. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; QUO WARRANTO DISTINGUISHED FROM

MANDAMUS. — Quo warranto tests the title to one’s office claimed by another and has
as its object the ouster of the holder from its enjoyment, while mandamus avails to
enforce clear legal duties and not to try disputed titles.
RESOLUTION
FRANCISCO, J.:
Questioned in this petition for review is the decision 1 of the Court of Appeals 2 (CA),
as well as its resolution, which affirmed the decision of the Regional Trial Court 3 (RTC)
of Zamboanga del Norte in dismissing a petition for mandamus against a Provincial
Election Supervisor and an incumbent Election Registrar.
The undisputed facts are follows: chanrob1es virtual 1aw library
Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del
Norte on July 27, 1986. She was to replace respondent Election Registrar Claudio
Concepcion, who, in turn, was transferred to Liloy, Zamboanga del Norte. 4
Correspondingly approved by the Civil Service Commission, 5 both appointments were
to take effect upon assumption of office. Concepcion, however, refused to transfer post
as he did not request for it. 6 Garces, on the other hand, was directed by the Office of
Assistant Director for Operations to assume the Gutalac post. 7 But she was not able to
do so because of a Memorandum issued by respondent Provincial Election Supervisor
Salvador Empeynado that prohibited her from assuming office in Gutalac as the same is
not vacant. 8
On February 24, 1987, Garces was directed by the same Office of Assistant Director to
defer her assumption of the Gutalac post. On April 15, 1987, she received a letter from
the Acting Manager, Finance Service Department, with an enclosed check to cover for
the expenses on construction of polling booths. It was addressed "Mrs. Lucita Garces
E.R. Gutalac, Zamboanga del Norte" which Garces interpreted to mean as superseding
the defendant order. 9 Meanwhile, since respondent Concepcion continued occupying
the Gutalac office, the COMELEC en banc cancelled his appointment to Liloy. 10
On February 26, 1988, Garces filed before the RTC a petition for mandamus with
preliminary prohibitory and mandatory injunction and damages against Empeynado 11
and Concepcion, among others. Meantime, the COMELEC en banc through a Resolution
dated June 3, 1988, resolved to recognize respondent Concepcion as the Election
Registrar of Gutalac, 12 and ordered that the appointments of Garces to Gutalac and of
Concepcion to Liloy be cancelled. 13 In view thereof, respondent Empeynado moved to
dismiss the petition for mandamus alleging that the same was rendered moot and
academic by the said COMELEC Resolution, and that the case is cognizable only by the
COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The RTC, thereafter,
dismissed the petition for mandamus on two grounds, viz., (1) that quo warranto is the
proper remedy, 14 and (2) that the "cases" or "matters" referred under the constitution
pertain only to those involving the conduct of elections. On appeal, respondent CA
affirmed the RTC’s dismissal of the case. Hence, this petition.
The issues raised are purely legal. First, is petitioner’s action for mandamus proper?
And, second, is this case cognizable by the RTC or by the Supreme Court?
On the first issue, Garces claims that she has a clear legal right to the Gutalac post
which was deemed vacated at the time of her appointment and qualification. Garces
insists that the vacancy was created by Section 2, Article III of the Provisional
Constitution. 15 On the contrary, Concepcion posits that he did not vacate his Gutalac
post as he did not accept the transfer to Liloy.
Article III Section 2 of the Provisional Constitution provides: jgc:chanrobles.com.ph
"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." (Emphasis supplied).
The above organic provision did not require any cause for removal of an appointive
official under the 1973 Constitution. 16 The transition period from the old to the new
Constitution envisioned an "automatic" vacancy; 17 hence the government is not hard
put to prove anything plainly and simply because the Constitution allows it. 18 Mere
appointment and qualification of the successor removes an incumbent from his post.
Nevertheless, the government in an act of auto-limitation and to prevent indiscriminate
dismissal of government personnel issued on May 28, 1986, Executive Order (E.O.) No.
17. This executive order, which applies in this case as it was passed prior to the
issuance of Concepcion’s transfer order, enumerates five grounds for separation or
replacement of elective and appointive officials authorized under Article III, Section 2 of
the Provisional Constitution, to wit:jgc:chanrobles.com.ph
"1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil
Service Law;
2. Existence of the probable cause for violation of the Anti-Graft and Corrupt Practices
Act as determined by the Ministry 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." cralaw virtua1aw library
Not one of those grounds was alleged to exist, much less proven by petitioner when
respondent Concepcion was transferred from Gutalac to Liloy. More, Concepcion was
transferred without his consent. A transfer requires a prior appointment. 19 If the
transfer was made without the consent of the official concerned, it is tantamount to
removal without valid cause 20 contrary to the fundamental guarantee on non-removal
except for cause. 21 Concepcion’s transfer thus becomes legally infirm and without
effect for he was not validly terminated. His appointment to the Liloy post, in fact, was
incomplete because he did not accept it. Acceptance, it must be emphasized, is
indispensable to complete an appointment. 22 Corollarily, Concepcion’s post in Gutalac
never became vacant. It is a basic precept in the law of public officers that "no person,
no matter how qualified and eligible he is for a certain position may be appointed to an
office which is not vacant. 23 There can be no appointment to a non-vacant position.
The incumbent must first be legally removed, or his appointment validly terminated
before one could be validly installed to succeed him. Further, Garces’ appointment was
ordered to be deferred by the COMELEC. The deferment order, we note, was not
unequivocably lifted. Worse, her appointment to Gutalac was even cancelled by the
COMELEC en banc.
These factors negate Garces’ claim for a well-defined, clear, certain legal right to the
Gutalac post. On the contrary, her right to the said office is manifestly doubtful and
highly questionable. As correctly ruled by respondent court, mandamus, which
petitioner filed below, will not lie as this remedy applies only where petitioner’s right is
founded clearly in law and not when it is doubtful. 24 It will not issue to give him
something to which he is not clearly and conclusively entitled. 25 Considering that
Concepcion continuously occupies the disputed position and exercises the corresponding
functions therefor, the proper remedy should have been quo warranto and not
mandamus. 26 Quo warranto tests the title to one’s office claimed by another and has
as its object ouster of the holder from its enjoyment, while mandamus avails to enforce
clear legal duties and not to try disputed titles. 27
Garces’ heavy reliance with the 1964 Tulawie 28 case is misplaced for material and
different factual considerations. Unlike in this case, the disputed office of "Assistant
Provincial Agriculturist" in the case of Tulawie is clearly vacant and petitioner Tulawie’s
appointment was confirmed by the higher authorities making his claim to the disputed
position clear and certain. Tulawie’s petition for mandamus, moreover, was against the
Provincial Agriculturist who never claimed title to the contested office. In this case,
there was no vacancy in the Gutalac post and petitioner’s appointment to which she
could base her claim was revoked making her claim uncertain.
Coming now to the second issue.
The jurisdiction of the RTC was challenged by respondent Empeynado 29 contending

that this is a "case" or "matter" cognizable by the COMELEC under Sec. 7 Art. IX-A of
the 1987 Constitution. The COMELEC resolution cancelling the appointment of Garces as
Election Registrar of Gutalac, he argues, should be raised only on certiorari before the
Supreme Court and not before the RTC, else the latter court becomes a reviewer of an
en banc COMELEC resolution contrary to Sec. 7, Art. IX-A..
The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides: jgc:chanrobles.com.ph
"Each commission shall decide by a majority vote of all its members any case or matter
brought before it within sixty days from the date of its submission for decision or
resolution. A case or matter is deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum required by the rules of the
commission or by the commission itself. Unless otherwise provided by this constitution
or by law, any decision, order, or ruling of each commission may be brought to the
supreme court on certiorari by the aggrieved party within thirty days from receipt of a
copy thereof." cralaw virtua1aw library
This provision is inapplicable as there was no case or matter filed before the COMELEC.
On the contrary, it was the COMELEC’s resolution that triggered this controversy. The
"case" or "matter" referred to by the constitution must be something within the
jurisdiction of the COMELEC, i.e., must pertain to an election dispute. the settled rule is
that "decision. rulings, order" of the COMELEC that may be brought to the Supreme
Court on certiorari under Sec. 7, Art. IX-A are those relate to the COMELEC’s exercise
of its adjudicatory or quasi-judicial powers 30 involving "elective regional, provincial
and city officials." 31 In this case, what is being assailed is the COMELEC’s choice of an
appointee to occupy the Gutalac Post which is an administrative duty done for the
operational set-up of an agency. 32 The controversy involves an appointive, not an
elective, official. Hardly can this matter call for the certiorari jurisdiction of the Supreme
Court. To rule otherwise surely burden the Court with trivial administrative questions
that are best ventilated before the RTC, a court which the law vests with the power to
exercise original jurisdiction over "all cases not within the exclusive jurisdiction of any
court, tribunal, person or body exercising judicial or quasi-judicial functions." 33
WHEREFORE, premises considered, the petition for review is hereby DENIED without
prejudice to the filing of the proper action with the appropriate body.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo, and Panganiban, JJ., concur.
G.R. No. 185740 July 23, 2013
THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented by GOVERNOR

JESUS O. TYPOCO, JR., Petitioner,
vs.
BEATRIZ O. GONZALES, Respondent.
DECISION
BRION, J.:
We resolve the Provincial Government of Camarines Norte's (petitioner) petition for review on
certiorari1 assailing the Decision2 dated June 25, 2008 and the Resolution3 dated December 2, 2008
of the Court of Appeals (CA) in CA-G.R. SP No. 97425, reinstating respondent Beatriz O. Gonzales
as the Province of Camarines Norte’s provincial administrator, or to an equivalent position.
Factual Antecedents
Gonzales was appointed as the provincial administrator of the Province of Camarines Norte by then
Governor Roy A. Padilla, Jr. on April 1, 1991. Her appointment was on a permanent capacity. On
March 8, 1999, Governor Jess B. Pimentel sent Gonzales a memorandum directing her to explain in
writing why no administrative charges should be filed against her for gross insubordination/gross
discourtesy in the course of official duties, and conduct grossly prejudicial to the best interest of the
service; this was later on captioned as Administrative Case No. 001. After Gonzales submitted her
comment, an Ad Hoc Investigation Committee found her guilty of the charges against her, and
recommended to Governor Pimentel that she be held administratively liable.4 On September 30,
1999, Governor Pimentel adopted the Ad Hoc Investigation Committee’s recommendation and
dismissed Gonzales.5
Proceedings before the Civil Service Commission
Gonzales appealed Governor Pimentel’s decision to the Civil Service Commission (CSC). The CSC
issued Resolution No. 0014186 modifying Governor Pimentel’s decision, finding Gonzales guilty of
insubordination and suspending her for six months. This decision was appealed by Governor
Pimentel, which the CSC denied in its Resolution No. 001952.7
Gonzales then filed a motion for execution and clarification of Resolution No. 001418, in which she
claimed that she had already served her six-month suspension and asked to be reinstated. The CSC
issued Resolution No. 002245,8 which directed Gonzales’ reinstatement.
Governor Pimentel reinstated Gonzales as provincial administrator on October 12, 2000, but
terminated her services the next day for lack of confidence. He then wrote a letter9 to the CSC
reporting his compliance with its order, and Gonzales’ subsequent dismissal as a confidential
employee. In his letter, Governor Pimentel cited Resolution No. 0001158,10 where the CSC ruled that
the provincial administrator position is highly confidential and is coterminous in nature.
The CSC responded through Resolution No. 030008,11 which again directed Gonzales’ reinstatement
as provincial administrator. It clarified that while the Local Government Code of 1991 (Republic Act
No. RA 7160) made the provincial administrator position coterminous and highly confidential in
nature, this conversion cannot operate to prejudice officials who were already issued permanent
appointments as administrators prior to the new law’s effectivity. According to the CSC, Gonzales
has acquired a vested right to her permanent appointment as provincial administrator and is entitled
to continue holding this office despite its subsequent classification as a coterminous position. The
conversion of the provincial administrator position from a career to a non-career service should not
jeopardize Gonzales’ security of tenure guaranteed to her by the Constitution. As a permanent
appointee, Gonzales may only be removed for cause, after due notice and hearing. Loss of trust and
confidence is not among the grounds for a permanent appointee’s dismissal or discipline under
existing laws.
In a letter12 dated February 17, 2005, Gonzales wrote the CSC alleging that Governor Jesus O.
Typoco, Jr., Camarines Norte’s incumbent governor, refused to reinstate her. The CSC responded
with Resolution No. 061988,13 which ordered Gonzales’ reinstatement to the provincial administrator
position, or to an equivalent position.Thus, the petitioner, through Governor Typoco, filed a petition
for review before the CA, seeking to nullify the CSC’s Resolution No. 030008 and Resolution No.
061988.
The Appellate Court’s Ruling
The CA supported the CSC’s ruling that reinstated Gonzales as provincial administrator or to an
equivalent position.14
Citing Aquino v. Civil Service Commission,15 the CA emphasized that an appointee acquires a legal
right to his position once he assumes a position in the civil service under a completed appointment.
This legal right is protected both by statute and the Constitution, and he cannot be removed from
office without cause and previous notice and hearing. Appointees cannot be removed at the mere
will of those vested with the power of removal, or without any cause.
The CA then enumerated the list of valid causes for a public officer’s removal under Section
46,16 Book V, Title I, Subtitle A of the Revised Administrative Code (Administrative Code), and noted
that lack of confidence was not in the list. Thus, the CA concluded that Gonzales’ dismissal on the
ground of loss of confidence violated her security of tenure, and that she has the right to be
reinstated with payment of backwages.
The CA further held that Gonzales’ dismissal was illegal because it was done without due process.
The proceedings under Administrative Case No. 001 cannot be the basis for complying with the
requirements of due process because they are separate and distinct from the proceedings in the
present controversy. Thus, Gonzales was illegally terminated when she was dismissed for lack of
confidence, without any hearing, the day after she was reinstated.
Lastly, the CA noted that Resolution No. 002245, which modified Governor Pimentel’s decision, has
long been final and executory. The petitioner did not file any petition for reconsideration against
Resolution No. 002245, and hence, it is no longer alterable.
The petitioner sought a reconsideration17 of the CA’s Decision, which the CA denied in a
Resolution18 dated December 2, 2008.
The Present Petition
In its present petition for review on certiorari, the petitioner argues that the provincial administrator
position has been converted into a highly confidential, coterminous position by RA 7160. Hence,
Gonzales no longer enjoyed security of tenure to the position she held prior to RA 7160’s enactment.
In her Comment19 and Memorandum,20 Gonzales maintained that the provincial administrator

remained a career service position. Section 721 of Presidential Decree No. 807, which was one of the
bases of the Court in Laurel V v. Civil Service Commission22 to declare the provincial administrator
as a career service position, is a verbatim copy of Section 7,23 Chapter 2 of the Administrative Code.
This classification, established by law and jurisprudence, cannot be altered by the mere
implementing rules and regulations of RA 7160. And assuming arguendo that the provincial
administrator position has indeed become a primarily confidential position, this reclassification
should not apply retroactively to Gonzales’ appointment on a permanent capacity prior to RA 7160’s
effectivity.
Issues
The parties’ arguments, properly joined, present to us the following issues:
1) Whether Congress has re-classified the provincial administrator position from a career
service to a primarily confidential, non-career service position; and
2) Whether Gonzales has security of tenure over her position as provincial administrator of
the Province of Camarines Norte.
We find the petition meritorious.
Congress has reclassified the provincial administrator position as a primarily confidential, non-career
position
We support the CSC’s conclusion that the provincial administrator position has been classified into a
primarily confidential, non-career position when Congress, through RA 7160, made substantial
changes to it. First, prior to RA 7160, Batas Pambansa Blg. 337, the old Local Government Code
(LGC), did not include a provincial administrator position among the listing of mandatory provincial
officials,24 but empowered the Sangguniang Panlalawigan to create such other offices as might then
be necessary to carry out the purposes of the provincial government.25 RA 7160 made the position
mandatory for every province.26 Thus, the creation of the provincial administrator position under the
old LGC used to be a prerogative of the Sangguniang Panlalawigan.
Second, in introducing the mandatory provincial administrator position, RA 7160 also amended the
qualifications for the provincial administrator position. While Section 48027 of RA 7160 retained the
requirement of civil service eligibility for a provincial administrator, together with the educational
requirements, it shortened the six-year work experience requirement to five years.28 It also mandated
the additional requirements of residence in the local government concerned, and imposed a good
moral character requirement.
Third, RA 7160 made the provincial administrator position coterminous with its appointing authority,
reclassifying it as a non-career service position that is primarily confidential.
Before RA 7160 took effect, Laurel classified the provincial administrator position as an open career
position which required qualification in an appropriate examination prior to appointment. Laurel
placed the provincial administrator position under the second major level of positions in the career
service under Section 7 of Presidential Decree No. 807. This provision reads:
Section 7. Classes of Positions in the Career Service.
(a) Classes of positions in the career service appointment to which requires examinations shall be
grouped into three major levels as follows:
xxxx
2. The second level shall include professional, technical, and scientific positions which involve
professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at
least four years of college work up to Division Chief level.
Section 480 of RA 7160 made the provincial administrator’s functions closely related to the
prevailing provincial administration by identifying the incumbent with the provincial governor to
ensure the alignment of the governor’s direction for the province with what the provincial
administrator would implement. In contrast with the general direction provided by the provincial
governor under the Manual of Position Descriptions cited in Laurel, Section 480(b) of RA 7160 now
mandates constant interaction between the provincial administrator and the provincial governor, to
wit:
(b) The administrator shall take charge of the office of the administrator and shall:
(1) Develop plans and strategies and upon approval thereof by the governor or mayor, as the
case may be, implement the same particularly those which have to do with the management
and administration-related programs and projects which the governor or mayor is
empowered to implement and which the sanggunian is empowered to provide for under this
Code;
(2) In addition to the foregoing duties and functions, the administrator shall:
(i) Assist in the coordination of the work of all the officials of the local government unit, under the
supervision, direction, and control of the governor or mayor, and for this purpose, he may convene
the chiefs of offices and other officials of the local government unit;
xxxx
(4) Recommend to the sanggunian and advise the governor and mayor, as the case may be, on all
other matters relative to the management and administration of the local government unit.
[emphases and italics ours]
As the CSC correctly noted in Resolution No. 0001158,29 the administrator position demands a close
intimate relationship with the office of the governor (its appointing authority) to effectively develop,
implement and administer the different programs of the province. The administrator’s functions are to
recommend to the Sanggunian and to advise the governor on all matters regarding the management
and administration of the province, thus requiring that its occupant enjoy the governor’s full trust and
confidence.
To emphasize the close relations that the provincial administrators’ functions have with the office of
the governor, RA 7160 even made the provincial administrator position coterminous with its
appointing authority.30 This provision, along with the interrelations between the provincial
administrator and governor under Section 480, renders clear the intent of Congress to make the
provincial administrator position primarily confidential under the non-career service category of the
civil service.
Congress’ reclassification of the provincial administrator position in RA 7160 is a valid exercise of

legislative power that does not violate Gonzales’ security of tenure
Having established that Congress has changed the nature of the provincial administrator position to
a primarily confidential employee, the next question to address would be its impact on Gonzales’
security of tenure. According to the petitioner, Gonzales lost her security of tenure when the
provincial administrator position became a primarily confidential position. Gonzales, on the other
hand, retorted that the conversion of the position should not be retroactively applied to her, as she is
a permanent appointee. Both the CA and the CSC ruled in favor of the latter, and gave premium to
Gonzales’ original permanent appointment under the old LGC. They posit that Gonzales acquired a
vested legal right over her position from the moment she assumed her duties as provincial
administrator. Thus, she cannot be removed from office except for cause and after due hearing;
otherwise such removal would amount to a violation of her security of tenure.
The arguments presented by the parties and ruled upon by the CA reflect a conceptual
entanglement between the nature of the position and an employee’s right to hold a position. These
two concepts are different. The nature of a position may change by law according to the dictates of
Congress. The right to hold a position, on the other hand, is a right that enjoys constitutional and
statutory guarantee, but may itself change according to the nature of the position.
Congress has the power and prerogative to introduce substantial changes in the provincial
administrator position and to reclassify it as a primarily confidential, non-career service position.
Flowing from the legislative power to create public offices is the power to abolish and modify them to
meet the demands of society;31 Congress can change the qualifications for and shorten the term of
existing statutory offices. When done in good faith, these acts would not violate a public officer’s
security of tenure, even if they result in his removal from office or the shortening of his
term.32 Modifications in public office, such as changes in qualifications or shortening of its tenure, are
made in good faith so long as they are aimed at the office and not at the incumbent.33
In Salcedo and Ignacio v. Carpio and Carreon,34 for instance, Congress enacted a law modifying the
offices in the Board of Dental Examiners. The new law, RA 546, raised the qualifications for the
board members, and provided for a different appointment process. Dr. Alfonso C. Salcedo and Dr.
Pascual Ignacio, who were incumbent board members at the time RA 546 took effect, filed a special
civil action for quo warranto against their replacements, arguing that their term of office under the old
law had not yet expired, and neither had they abandoned or been removed from office for cause. We
dismissed their petition, and held that Congress may, by law, terminate the term of a public office at
any time and even while it is occupied by the incumbent. Thus, whether Dr. Salcedo and Dr. Ignacio
were removed for cause or had abandoned their office is immaterial.
More recently, in Dimayuga v. Benedicto II,35 we upheld the removal of Chona M. Dimayuga, a
permanent appointee to the Executive Director II position, which was not part of the career executive
service at the time of her appointment. During her incumbency, the CSC, by authority granted under
Presidential Decree No. 1, classified the Executive Director II position to be within the career
executive service. Since Dimayuga was not a career executive service officer, her initially permanent
appointment to the position became temporary; thus, she could be removed from office at any time.
In the current case, Congress, through RA 7160, did not abolish the provincial administrator position
but significantly modified many of its aspects. It is now a primarily confidential position under the
non-career service tranche of the civil service. This change could not have been aimed at
prejudicing Gonzales, as she was not the only provincial administrator incumbent at the time RA
7160 was enacted. Rather, this change was part of the reform measures that RA 7160 introduced to
further empower local governments and decentralize the delivery of public service. Section 3(b) of
RA 7160 provides as one of its operative principles that:
(b) There shall be established in every local government unit an accountable, efficient, and dynamic
organizational structure and operating mechanism that will meet the priority needs and service
requirements of its communities.
Thus, Gonzales’ permanent appointment as provincial administrator prior to the enactment of RA

7160 is immaterial to her removal as provincial administrator. For purposes of determining whether
Gonzales’ termination violated her right to security of tenure, the nature of the position she occupied
at the time of her removal should be considered, and not merely the nature of her appointment at the
time she entered government service.
In echoing the CSC and the CA’s conclusion, the dissenting opinion posits the view that security of
tenure protects the permanent appointment of a public officer, despite subsequent changes in the
nature of his position.
Citing Gabriel v. Domingo,36 the dissenting opinion quotes our categorical declaration that "a
permanent employee remains a permanent employee unless he is validly terminated," and from
there attempts to draw an analogy between Gabriel and the case at hand.
The very first sentence of Gabriel spells out its vast difference from the present case. The sole and
main issue in Gabriel is whether backwages and other monetary benefits could be awarded to an
illegally dismissed government employee, who was later ordered reinstated. From this sentence
alone can be discerned that the issues involved related to the consequences of illegal dismissal
rather than to the dismissal itself. Nowhere in Gabrielwas there any mention of a change in the
nature of the position held by the public officer involved.
Further, key factual differences make Gabriel inapplicable to the present case, even if only by
analogy: first, the public officer in Gabriel received a Memorandum stating that he would be
appointed as Transportation District Supervisor III under their office reorganization. Second, the
Court in Gabriel clearly pointed out that the reason for his eventual appointment as a casual
employee, which led to his termination from service, was due to a pending protest he filed before the
CSC – indicating that there was no ground for him to not receive the appointment earlier promised.
In contrast, the issue of Gonzales is whether the appointing authority’s lack of trust and confidence
in the appointee was sufficient cause for the termination of employment of a primarily confidential
employee. And third, there was a change in the position held by the public officer in Gabriel. He was
a permanent employee who was extended a different appointment, which was casual in nature,
because of a protest that he earlier filed. In contrast, the current case involves a public officer who
held the same position whose nature changed because of the passage of RA 7160.
The dissent also quotes the penultimate paragraph of Civil Service Commission v. Javier37 to support
its contention that permanent appointees could expect protection for their tenure and appointments
in the event that the Court determines that the position is actually confidential in nature:
The Court is aware that this decision has repercussions on the tenure of other corporate secretaries
in various GOCCs. The officers likely assumed their positions on permanent career status, expecting
protection for their tenure and appointments, but are now re-classified as primarily confidential
appointees. Such concern is unfounded, however, since the statutes themselves do not classify the
position of corporate secretary as permanent and career in nature. Moreover, there is no absolute
guarantee that it will not be classified as confidential when a dispute arises. As earlier stated, the
Court, by legal tradition, has the power to make a final determination as to which positions in
government are primarily confidential or otherwise. In the light of the instant controversy, the Court's
view is that the greater public interest is served if the position of a corporate secretary is classified as
primarily confidential in nature.38
The quoted portion, however, even bolsters our theory. Read together with its succeeding
paragraph, the quoted portion in Civil Service Commission v. Javier39 actually stands for the
proposition that other corporate secretaries in government-owned and –controlled corporations
cannot expect protection for their tenure and appointments upon the reclassification of their position
to a primarily confidential position. There, the Court emphasized that these officers cannot rely on
the statutes providing for their permanent appointments, if and when the Court determines these to
be primarily confidential. In the succeeding paragraph after the portion quoted by the dissent, we
even pointed out that there is no vested right to public office, nor is public service a property right.
Thus:
Moreover, it is a basic tenet in the country's constitutional system that "public office is a public trust,"
and that there is no vested right in public office, nor an absolute right to hold office. No proprietary
title attaches to a public office, as public service is not a property right. Excepting constitutional
offices which provide for special immunity as regards salary and tenure, no one can be said to have
any vested right in an office. The rule is that offices in government, except those created by the
constitution, may be abolished, altered, or created anytime by statute. And any issues on the
classification for a position in government may be brought to and determined by the
courts.40 (emphases and italics ours)
Executive Order No. 503 does not grant Gonzales security of tenure in the provincial administrator
position on a permanent capacity
In extending security of tenure to Gonzales’ permanent appointment as provincial administrator, the

dissenting opinion cites as authority Executive Order No. (EO) 503 which provided certain
safeguards against the termination of government employees affected by the implementation of RA
7160. According to the dissenting opinion, EO 503 is an obvious indication of the executive
department’s intent to protect and uphold both the national government and the local government
employees’ security of tenure. It cites Section 2(a), paragraph 8 (providing for the tenure of an
administrator) to prove its point:
8. Incumbents of positions, namely administrator, legal officer, and information officer declared by
the Code as coterminous, who hold permanent appointments, shall continue to enjoy their
permanent status until they vacate their positions.
At first glance, EO 503 does seem to extend the provincial administrators’ security of tenure in their
permanent appointments even beyond the effectivity of RA 7160. EO 503, however, does not apply
to employees of the local government affected by RA 7160’s enactment. The title of EO 503 clearly
provides for its scope of application, to wit:
Executive Order No. 503. Providing for the Rules and Regulations Implementing the Transfer of
Personnel and Assets, Liabilities and Records of National Government Agencies whose Functions
are to be Devolved to the Local Government Units and for other Related Purposes. [underscore,
italics and emphases ours]
A reading of EO 503’s whereas clauses confirms that it applies only to national government
employees whose functions are to be devolved to local governments:
WHEREAS, Republic Act No. 7160, otherwise known as the Local Government Code of 1991,
hereinafter referred to as the Code, transfers the responsibility for the delivery of basic services and
facilities from the national government agencies (NGAs) concerned to the local government units
(LGUs);
WHEREAS, the Code stipulated that the transfer of basic services and facilities shall be
accompanied by the transfer of the national personnel concerned and assets to ensure continuity in
the delivery of such services and facilities;
WHEREAS, responsive rules and regulations are needed to affect the required transfer of national
personnel concerned and assets to the LGUs. [underscores, italics and emphases ours]
Thus, paragraph 8, section 2(a) of EO 503 cannot apply to Gonzales, a provincial administrator. As
explained earlier, the existence of the provincial administrator position was a prerogative of the
Sanggunian Panlalawigan, and was not even a mandatory public office under the old LGC. It is
clearly not a national government position whose functions are to be devolved to the local
governments.
The dissenting opinion, on the other hand, argues that EO 503 does not apply to national
government employees only. According to the dissent, the phrase "and for related purposes" in EO
503’s title could encompass personnel not necessarily employed by national government agencies
but by local government units such as the administrator, the legal officer and the information officer,
as enumerated in Section 2(a), paragraph 8 thereof. This provision, according to the dissent, fills the
crucial gap left by RA 7160 which did not provide whether the term of an incumbent provincial
administrator would automatically become coterminous with that of the appointing authority upon RA
7160’s effectivity.
This kind of construction effectively adds to EO 503’s object matters that it did not explicitly provide
for. The phrase "and for other related purposes" can only add to EO 503 matters related to the
devolution of personnel, basic services and facilities to local government units. The impact of the
change in a local government position’s nature is clearly different from the implementation of
devolution and its ancillary effects: the former involves a change in a local government position’s
functions and concept of tenure, while the latter involves (among other things) the transfer of
national government employees to local government units. This difference is highlighted by the fact
that EO 503, as reflected by its whereas clauses, was issued to implement Section 17 of RA 7160.
In contrast, the change in the nature of the provincial administrator position may be gleaned from
Section 480 of RA 7160. Hence, by no stretch of reasonable construction can the phrase "and for
other related purposes" in EO 503’s title be understood to encompass the consequences of the
change in the local government position’s nature.
Furthermore, construing that the administrator position in Section 2(a), paragraph 8 pertains to city,
municipal and/or provincial administrators would result in a legal infirmity. EO 503 was issued
pursuant to the President’s ordinance powers to provide for rules that are general or permanent in
character for the purpose of implementing the President’s constitutional or statutory
powers.41 Exercising her constitutional duty to ensure that all laws are faithfully executed, then
President Corazon Aquino issued EO 503 to ensure the executive’s compliance with paragraph (i),
Section 17 of RA 7160, which requires local government units to absorb the personnel of national
agencies whose functions shall be devolved to them.42 This is reflected in EO 503’s title and whereas
clauses, and its limited application as discussed earlier.
Thus, the dissenting opinion’s interpretation would result in the judicial recognition of an act of the
Executive usurping a legislative power. The grant of permanent status to incumbent provincial
administrators, despite the clear language and intent of RA 7160 to make the position coterminous,
is an act outside the President’s legitimate powers. The power to create, abolish and modify public
offices is lodged with Congress.43 The President cannot, through an Executive Order, grant
permanent status to incumbents, when Congress by law has declared that the positions they occupy
are now confidential. Such act would amount to the President’s amendment of an act of Congress –
an act that the Constitution prohibits. Allowing this kind of interpretation violates the separation of
powers, a constitutionally enshrined principle that the Court has the duty to uphold.44
The dissent counters this argument by pointing out that Section 2(a), paragraph 8 of EO 503 enjoys
the legal presumption of validity. Unless the law or rule is annulled in a direct proceeding, the legal
presumption of its validity stands. The EO’s validity, however, is not in question in the present case.
What is at issue is a proper interpretation of its application giving due respect to the principle of
separation of powers, and the dissenting opinion’s interpretation does violence to this principle.
Gonzales has security of tenure, but only as a primarily confidential employee
To be sure, both career and non-career service employees have a right to security of tenure. All
1âwphi1
permanent officers and employees in the civil service, regardless of whether they belong to the
career or non-career service category, are entitled to this guaranty; they cannot be removed from
office except for cause provided by law and after procedural due process.45 The concept of security
of tenure, however, labors under a variation for primarily confidential employees due to the basic
concept of a "primarily confidential" position. Serving at the confidence of the appointing authority,
the primarily confidential employee’s term of office expires when the appointing authority loses trust
in the employee. When this happens, the confidential employee is not "removed" or "dismissed" from
office; his term merely "expires"46 and the loss of trust and confidence is the "just cause" provided by
law that results in the termination of employment. In the present case where the trust and confidence
has been irretrievably eroded, we cannot fault Governor Pimentel’s exercise of discretion when he
decided that he could no longer entrust his confidence in Gonzales.
Security of tenure in public office simply means that a public officer or employee shall not be
suspended or dismissed except for cause, as provided by law and after due process. It cannot be
expanded to grant a right to public office despite a change in the nature of the office held. In other
words, the CSC might have been legally correct when it ruled that the petitioner violated Gonzales’
right to security of tenure when she was removed without sufficient just cause from her position, but
the situation had since then been changed. In fact, Gonzales was reinstated as ordered, but her
services were subsequently terminated under the law prevailing at the time of the termination of her
service; i.e., she was then already occupying a position that was primarily confidential and had to be
dismissed because she no longer enjoyed the trust and confidence of the appointing authority. Thus,
Gonzales’ termination for lack of confidence was lawful. She could no longer be reinstated as
provincial administrator of Camarines Norte or to any other comparable position. This conclusion,
however, is without prejudice to Gonzales’ entitlement to retirement benefits, leave credits, and
future employment in government service.
WHEREFORE, all premises considered, we hereby GRANT the petition, and REVERSE and SET
ASIDE the Decision dated June 25, 2008 and the Resolution dated December 2, 2008 of the Court
of Appeals in CAG.R. SP No. 97425.
SO ORDERED.

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[G.R. No. 116033. February 26, 1997.

ALFREDO L. AZARCON, Petitioner, v. SANDIGANBAYAN, PEOPLE OF THE

Ongkiko Kalaw Manhit Acorda Panga & Velasco Law Offices.

The Solicitor General for Respondents.

1. REMEDIAL LAW; JURISDICTION; CANNOT BE PRESUMED OR IMPLIED. — It is

4. CONSTITUTIONAL LAW; DELEGATED POWERS; ADMINISTRATIVE AGENCIES MAY

6. STATUTORY CONSTRUCTION; LEGISLATIVE INTENT; DETERMINED PRINCIPALLY

Kind of property — Isuzu dump truck

Motor number — E120-229598

Chassis No. — SPZU50-1772440

Owned By — Mr. Jaime Ancla

Thereafter, the Sandiganbayan found that

Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint . . . to

CONTRARY TO LAW." cralaw virtua1aw library

The Respondent Court’s Decision

On March 8, 1994, Respondent Sandiganbayan 20 rendered a Decision, 21 the

SO ORDERED." cralaw virtua1aw library

Hence, this petition.

His appointment as a depositary was not by virtue of a direct provision of law, or by

The Court’s Ruling

The petition is meritorious.

Jurisdiction of the Sandiganbayan

In case private individuals are charged as co-principals, accomplices or accessories with

Azarcon: A Public Officer or A Private Individual

"(to) be a public officer, one must be —

a. by direct provision of the law, or

c. by appointment by competent authority." 28

It is axiomatic in our constitutional framework, which mandates a limited government,

The constructive distraint of personal property shall be effected by requiring the

Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.

[G.R. No. 111091. August 21, 1995.]

ENGINEER CLARO J. PRECLARO, Petitioner, v. SANDIGANBAYAN and PEOPLE

1. CRIMINAL LAW; ANTI-GRAFT AND CORRUPT PRACTICES ACT; SECTION 2 (b)

WHEREFORE, judgment is hereby rendered finding accused Claro Preclaro y Jambalos

The antecedent facts are largely undisputed.

On 1 October 1989, the Chemical Mineral Division of the Industrial Technology

JUSTICE BALAJADIA: chanrob1es virtual 1aw library

q. When Dave Preclaro arrived, what did he do?

q. What was his comment about the punch list?

a. He told us that it is harder to produce small items than big ones.

q. How long did you converse with Engr. Claro Preclaro?

a. I think thirty minutes or so.

q. Was Preclaro alone when he came?

a. Yes, Your Honor.

PROS. CAOILI: chanrob1es virtual 1aw library

JUSTICE ESCAREAL: chanrob1es virtual 1aw library

q. Who said "Paano na?"

PROS. CAOLI: chanrob1es virtual 1aw library

a. Jimmy Sta. Maria, Jr. handed two envelopes to Preclaro.

1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF THE CASE, INSTEAD OF

We find the petition unmeritorious.

We are not convinced by Petitioner’s arguments.

Non-career service in particular is characterized by —

The Non-Career Service shall include: chanrob1es virtual 1aw library

(1) Elective officials and their personal or confidential staff;

(4) Contractual personnel or those whose employment in the government is in

(5) Emergency and seasonal personnel. (Emphasis supplied.) 14

Among petitioner’s duties as project manager is to evaluate the contractor’s

Petitioner enumerates the alleged improbabilities and inconsistencies in the testimonies

Q What was his answer if any?

JUSTICE ESCAREAL: chanrob1es virtual 1aw library

JUSTICE BALAJADIA: chanrob1es virtual 1aw library

What is the translation now?