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G.R. No. 157013 July 10, 2003ATTY. ROMULO B. MACALINTAL, petitiovs.COMMISSION ON ELECTIONS, HON. ALBERTO ROMULO, in his official capacity as Executive Secretary, and HON. EMILIA T. BONCODSecretary of the Department of Budget and Management, respondents.AUSTRIA-MARTINEZ, J.:Before the Court is a petition for certiorari and prohibition filed by Romulo B. Macalintal, a member of the Philippine Bar, seekindeclaration that certain provisions of Republic Act No. 9189 (The Overseas Absentee Voting Act of 2003)

1 suffer from constituti

nfirmity. Claiming that he has actual and material legal interest in the subject matter of this case in seeing to it that public funds properly and lawfully used and appropriated, petitioner fi led the instant petition as a taxpayer and as a lawyer.

The Court upholds the right of petitioner to file the present petition.R.A. No. 9189, entitled, " An Act Providing for A System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abro

Appropriating Funds Therefor, and for Other Purposes ," appropriates funds under Section 29 thereof which provides that a supplemebudget on the General Appropriations Act of the year of its enactment into law shall provide for the necessary amount to carry ouprovisions. Taxpayers, such as herein petitioner, have the right to restrain officials from wasting public funds through the enforcement ounconstitutional statute.

2 The Court has held that they may assail the validity of a law appropriating public funds

3 because expenditur

public funds by an officer of the State for the purpose of executing an unconstitutional act constitutes a misapplication of such funds.4

The challenged provision of law involves a public right that affects a great number of citizens. The Court has adopted the policy of tajurisdiction over cases whenever the petitioner has seriously and convincingly presented an issue of transcendental significance toFilipino people. This has been explicitly pronounced in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs. Tan,

5 where

Court held:Objections to taxpayers’ suit for lack of sufficient personality standing, or interest are, however, in the main procedural m attConsidering the importance to the public of the cases at bar, and in keeping with the Court’s duty, under the 1987 Constitution

determine whether or not the other branches of government have kept themselves within the limits of the Constitution and laws and that they have not abused the discretion given to them, the Court has brushed aside technicalities of procedure and taken cognizance of these petitions.

6

ndeed, in this case, the Court may set aside procedural rules as the constitutional right of suffrage of a considerable number of Filipinonvolved.

The question of propriety of the instant petition which may appear to be visited by the vice of prematurity as there are no ongoproceedings in any tribunal, board or before a government official exercising judicial, quasi-judicial or ministerial functions as requiredRule 65 of the Rules of Court, dims in light of the importance of the constitutional issues raised by the petitioner. In Tañada vs. Angara,

7

Court held:In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raa justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitutionbecomes not only the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is judicial rat

than political. The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld." Once a "controversto the application or interpretation of constitutional provision is raised before this Court (as in the instant case), it becomes a lissue which the Court is bound by constitutional mandate to decide."

n another case of paramount impact to the Filipino people, it has been expressed that it is illogical to await the adverse consequencethe law in order to consider the controversy actual and ripe for judicial resolution.

8 In yet another case, the Court said that:

. . . despite the inhibitions pressing upon the Court when confronted with constitutional issues, it will not hesitate to declare aor act invalid when it is convinced that this must be done. In arriving at this conclusion, its only criterion will be the Constitutand God as its conscience gives it in the light to probe its meaning and discover its purpose. Personal motives and policonsiderations are irrelevancies that cannot influence its decisions. Blandishment is as ineffectual as intimidation, for all awesome power of the Congress and Executive, the Court will not hesitate "to make the hammer fall heavily," where the actthese departments, or of any official, betray the people’s will as expressed in the Constitution . . .

9

The need to consider the constitutional issues raised before the Court is further buttressed by the fact that it is now more than fifteen yesince the ratification of the 1987 Constitution requiring Congress to provide a system for absentee voting by qualified Filipinos abro

Thus, strong reasons of public policy demand that the Court resolves the instant petition 10 and determine whether Congress has acwithin the limits of the Constitution or if it had gravely abused the discretion entrusted to it.

11

The petitioner raises three principal questions:A. Does Section 5(d) of Rep. Act No. 9189 allowing the registration of voters who are immigrants or permanent residents in otcountries by their mere act of executing an affidavit expressing their intention to return to the Philippines, violate the residerequirement in Section 1 of Article V of the Constitution?B. Does Section 18.5 of the same law empowering the COMELEC to proclaim the winning candidates for national offices and plist representatives including the President and the Vice-President violate the constitutional mandate under Section 4, Article Vthe Constitution that the winning candidates for President and the Vice-President shall be proclaimed as winners by Congress?C. May Congress, through the Joint Congressional Oversight Committee created in Section 25 of Rep. Act No. 9189, exercise power to review, revise, amend, and approve the Implementing Rules and Regulations that the Commission on Elections spromulgate without violating the independence of the COMELEC under Section 1, Artic le IX-A of the Constitution?

The Court will resolve the questions in seriatim.



A. Does Section 5(d) of Rep. Act No. 9189 violate Section 1, Article V of the 1987 Constitution of the Republic of the Philippines ?Section 5(d) provides:

Sec. 5. Disqualifications. – The following shall be disqualified from voting under this Act:. . . . . . . . .d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registratan affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residein the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also stthat he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name of immigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to votabsentia.

Petitioner posits that Section 5(d) is unconstitutional because it violates Section 1, Article V of the 1987 Constitution which requires thatvoter must be a resident in the Philippines for at least one year and in the place where he proposes to vote for at least six mommediately preceding an election. Petitioner cites the ruling of the Court in Caasi vs. Court of Appeals

12 to support his claim. In that c

the Court held that a "green card" holder immigrant to the United States is deemed to have abandoned his domicile and residence in Philippines.Petitioner further argues that Section 1, Article V of the Constitution does not allow provisional registration or a promise by a voteperform a condition to be qualified to vote in a political exercise;

13 that the legislature should not be allowed to circumvent

requirement of the Constitution on the right of suffrage by providing a condition thereon which in effect amends or alters the aforeresidence requirement to qualify a Filipino abroad to vote.

14 He claims that the right of suffrage should not be granted to anyone who

the date of the election, does not possess the qualifications provided for by Section 1, Article V of the Constitution.Respondent COMELEC refrained from commenting on this issue.

15

n compliance with the Resolution of the Court, the Solicitor General filed his comment for all public respondents. He contraposes thatconstitutional challenge to Section 5(d) must fail because of the absence of clear and unmistakable showing that said provision of law

repugnant to the Constitution. He stresses: All laws are presumed to be constitutional; by the doctrine of separation of powerdepartment of government owes a becoming respect for the acts of the other two departments; all laws are presumed to have adheredconstitutional limitations; the legislature intended to enact a valid, sensible, and just law.n addition, the Solicitor General points out that Section 1, Article V of the Constitution is a verbatim reproduction of those provided fo

the 1935 and the 1973 Constitutions. Thus, he cites Co vs. Electoral Tribunal of the House of Representatives16

wherein the Court held the term "residence" has been understood to be synonymous with "domicile" under both Constitutions. He further argues that a percan have only one "domicile" but he can have two residences, one permanent (the domicile) and the other temporary;

17 and that

definition and meaning given to the term residence likewise applies to absentee voters. Invoking Romualdez-Marcos vs. COMELEC 18

wreiterates the Court’s ruling in Faypon vs. Quirino,

19 the Solicitor General maintains that Filipinos who are immigrants or perman

residents abroad may have in fact never abandoned their Philippine domicile.20

Taking issue with the petitioner’s contention that "green card" holders are considered to have abandoned their Philippine dom icile,Solicitor General suggests that the Court may have to discard its ruling in Caasi vs. Court of Appeals

21 in so far as it relates to immigrants

permanent residents in foreign countries who have executed and submitted their affidavits conformably with Section 5(d) of R.A. No. 91He maintains that through the execution of the requisite affidavits, the Congress of the Philippines with the concurrence of the Presidenthe Republic had in fact given these immigrants and permanent residents the opportunity, pursuant to Section 2, Article V of Constitution, to manifest that they had in fact never abandoned their Philippine domicile; that indubitably, they would have formally categorically expressed the requisite intentions, i.e., "animus manendi " and "animus revertendi ;" that Filipino immigrants and permanresidents abroad possess the unquestionable right to exercise the right of suffrage under Section 1, Article V of the Constitution uapproval of their registration, conformably with R.A. No. 9189.

22

The seed of the present controversy is the interpretation that is given to the phrase, "qualified citizens of the Philippines abroad" aappears in R.A. No. 9189, to wit:SEC. 2. Declaration of Policy . – It is the prime duty of the State to provide a system of honest and orderly overseas absentee voting tupholds the secrecy and sanctity of the ballot. Towards this end, the State ensures equal opportunity to all qualified citizens of Philippines abroad in the exercise of this fundamental right.

SEC. 3. Definition of Terms. – For purposes of this Act:

a) " Absentee Voting" refers to the process by which qualified citizens of the Philippines abroad, exercise their righvote;. . . (Emphasis supplied)f) "Overseas Absentee Voter " refers to a citizen of the Philippines who is qualified to register and vote under this Act,otherwise disqualified by law, who is abroad on the day of elections. (Emphasis supplied)

SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) yearage on the day of elections, may vote for president, vice-president, senators and party-list representatives. (Emphasis supplied)

n relation to Sections 1 and 2, Article V of the Constitution which read:SEC. 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at least eightyears of age, and who shall have resided in the Philippines for at least one year and in the place wherein they propose to voteat least six months immediately preceding the election. No literacy, property, or other substantive requirement shall be impoon the exercise of suffrage.



SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the ballot as well as a system for absenvoting by qualified Filipinos abroad.. . . . . . . . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that suffrage may be exercised by (1) all citizens of the Philippines, (2) otherwise disqualified by law, (3) at least eighteen years of age, (4) who are residents in the Philippines for at least one year and in place where they propose to vote for at least six months immediately preceding the election. Under Section 5(d) of R.A. No. 9189, onthose disqualified from voting is an immigrant or permanent resident who is recognized as such in the host country unless he/she execuan affidavit declaring that he/she shall resume actual physical permanent residence in the Philippines not later than three years frapproval of his/her registration under said Act.Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the Filipinos abroad who are immigrant

permanent residents, to vote. He focuses solely on Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section of R.A. No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a system for absentee voting by qualiFilipinos abroad.A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression that it contravenes Section 1, Article V of Constitution. Filipino immigrants and permanent residents overseas are perceived as having left and abandoned the Philippines to permanently in their host countries and therefore, a provision in the law enfranchising those who do not possess the residerequirement of the Constitution by the mere act of executing an affidavit expressing their intent to return to the Philippines within a gperiod, risks a declaration of unconstitutionality. However, the risk is more apparent than real.The Constitution is the fundamental and paramount law of the nation to which all other laws must conform and in accordance with wall private rights must be determined and all public authority administered.

23 Laws that do not conform to the Constitution shall be stric

down for being unconstitutional.Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC , the Court said:

. . . An act of the legislature, approved by the executive, is presumed to be within constitutional limitations. The responsibilit

upholding the Constitution rests not on the courts alone but on the legislature as well. The question of the validity of every stais first determined by the legislative department of the government itself.

24

Thus, presumption of constitutionality of a law must be overcome convincingly:. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be clear and unequivocal, for evenlaw is aimed at the attainment of some public good, no infringement of constitutional rights is allowed. To strike down a law thmust be a clear showing that what the fundamental law condemns or prohibits, the statute allows it to be done.

25

As the essence of R.A. No. 9189 is to enfranchise overseas qualified Filipinos, it behooves the Court to take a holistic view of the pertinprovisions of both the Constitution and R.A. No. 9189. It is a basic rule in constitutional construction that the Constitution shouldconstrued as a whole. In Chiongbian vs. De Leon,

26 the Court held that a constitutional provision should function to the full extent o

substance and its terms, not by itself alone, but in conjunction with all other provisions of that great document. Constitutional provisiare mandatory in character unless, either by express statement or by necessary implication, a different intention is manifest.

27 The inten

the Constitution may be drawn primarily from the language of the document itself. Should it be ambiguous, the Court may consider

ntent of its framers through their debates in the constitutional convention.

28

R.A. No. 9189 was enacted in obeisance to the mandate of the first paragraph of Section 2, Article V of the Constitution that Congress sprovide a system for voting by qualified Filipinos abroad. It must be stressed that Section 2 does not provide for the parameters of exercise of legislative authority in enacting said law. Hence, in the absence of restrictions, Congress is presumed to have duly exercisefunction as defined in Article VI (The Legislative Department) of the Constitution.To put matters in their right perspective, it is necessary to dwell first on the significance of absentee voting. The concept of absentee vos relatively new. It is viewed thus:

The method of absentee voting has been said to be completely separable and distinct from the regular system of voting, and toa new and different manner of voting from that previously known, and an exception to the customary and usual manner of votThe right of absentee and disabled voters to cast their ballots at an election is purely statutory ; absentee voting was unknownand not recognized at, the common law.Absentee voting is an outgrowth of modern social and economic conditions devised to accommodate those engaged in militarycivil life whose duties make it impracticable for them to attend their polling places on the day of election, and the privileg

absentee voting may flow from constitutional provisions or be conferred by statutes, existing in some jurisdictions, which providvarying terms for the casting and reception of ballots by soldiers and sailors or other qualified voters absent on election day fthe district or precinct of their residence.Such statutes are regarded as conferring a privilege and not a right, or an absolute right. When the legislature chooses to grantright by statute, it must operate with equality among all the class to which it is granted; but statutes of this nature may be limiin their application to particular types of elections. The statutes should be construed in the light of any constitutional provis

affecting registration and elections, and with due regard to their texts prior to amendment and to predecessor statutes and decisions thereunder; they should also be construed in the light of the circumstances under which they were enacted ; and so acarry out the objects thereof, if this can be done without doing violence to their provisions and mandates. Further, in passing

statutes regulating absentee voting, the court should look to the whole and every part of the election laws, the intent of the en

plan, and reasons and spirit of their adoption, and try to give effect to every portion thereof .29

(Emphasis supplied)



Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same time, both a resident and an absentee.30

Howeunder our election laws and the countless pronouncements of the Court pertaining to elections, an absentee remains attached to residence in the Philippines as residence is considered synonymous with domicile.n Romualdez-Marcos,

31 the Court enunciated:

Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicilnatural persons is their place of habitual residence." In Ong vs. Republic, this court took the concept of domicile to meanindividual’s "permanent home," "a place to which, whenever absent for business or for pleasure, one intends to return, depends on facts and circumstances in the sense that they disclose intent." Based on the foregoing, domicile includes the telements of "the fact of residing or physical presence in a fixed place" and animus manendi , or the intention of returning thpermanently.

Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical preseof a person in a given area, community or country. The essential distinction between residence and domicile in law is tresidence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek a pfor purposes such as pleasure, business, or health. If a person’s intent be to remain, it becomes his domicile; if his intent is to le

as soon as his purpose is established it is residence. It is thus, quite perfectly normal for an individual to have different residenin various places. However, a person can only have a single domicile, unless, for various reasons, he successfully abandons

domicile in favor of another domicile of choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:"There is a difference between domicile and residence. ‘Residence’ is used to indicate a place of abode, whet

permanent or temporary; ‘domicile’ denotes a fixed permanent residence to which, when absent, one has the inten

of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domici

residence coupled with the intention to remain for an unlimited time . A man can have but one domicile for the sapurpose at any time, but he may have numerous places of residence. His place of residence is generally his placdomicile, but it is not by any means necessarily so since no length of residence without intention of remaining

constitute domicile."For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As thconcepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for elec

purposes is used synonymously with domicile.32

(Emphasis supplied)Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this country, the framers of the Constitution considethe circumstances that impelled them to require Congress to establish a system for overseas absentee voting, thus:

MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here has a residential restriction, isdenied to citizens temporarily residing or working abroad. Based on the statistics of several government agencies, there oughbe about two million such Filipinos at this time. Commissioner Bernas had earlier pointed out that these provisions are really lifrom the two previous Constitutions of 1935 and 1973, with the exception of the last paragraph. They could not therefore hforeseen at that time the phenomenon now described as the Filipino labor force explosion overseas.According to government data, there are now about 600,000 contract workers and employees, and although the major portion

these expatriate communities of workers are to be found in the Middle East, they are scattered in 177 countries in the world.In a previous hearing of the Committee on Constitutional Commissions and Agencies, the Chairman of the CommissionElections, Ramon Felipe, said that there was no insuperable obstacle to making effective the right of suffrage for Filipinos oversThose who have adhered to their Filipino citizenship notwithstanding strong temptations are exposed to embrace a mconvenient foreign citizenship. And those who on their own or under pressure of economic necessity here, find that they havdetach themselves from their families to work in other countries with definite tenures of employment. Many of them arecontract employment for one, two, or three years. They have no intention of changing their residence on a permanent basis, are technically disqualified from exercising the right of suffrage in their countries of destination by the residential requiremenSection 1 which says:

Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law, who are eighteen yearage or over, and who shall have resided in the Philippines for at least one year and in the place wherein they proposvote for at least six months preceding the election.

I, therefore, ask the Committee whether at the proper time they might entertain an amendment that will make this exercise of

right to vote abroad for Filipino citizens an effective, rather than merely a nominal right under this proposed Constitution.FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I would like to make a comment on meaning of "residence" in the Constitution because I think it is a concept that has been discussed in various decisions of Supreme Court, particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the meaning of "residencethe Election Law. Allow me to quote:

A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to improve his lot and thacourse, includes study in other places, practice of his avocation, reengaging in business. When an election is to be hethe citizen who left his birthplace to improve his lot may decide to return to his native town, to cast his ballot, butprofessional or business reasons, or for any other reason, he may not absent himself from the place of his professionabusiness activities.So, they are here registered as voters as he has the qualifications to be one, and is not willing to give up or lose opportunity to choose the officials who are to run the government especially in national elections. Despite s

registration, the animus revertendi to his home, to his domicile or residence of origin has not forsaken him.



This may be the explanation why the registration of a voter in a place other than his residence of origin has not been deemed sufficienconsider abandonment or loss of such residence of origin.

In other words, "residence" in this provision refers to two residence qualifications: "residence" in the Philippines and "residenin the place where he will vote. As far as residence in the Philippines is concerned, the word "residence" means domicile, but aas residence in the place where he will actually cast his ballot is concerned, the meaning seems to be different. He could havdomicile somewhere else and yet he is a resident of a place for six months and he is allowed to vote there. So that there mayserious constitutional obstacles to absentee voting, unless the vote of the person who is absent is a vote which will be consideas cast in the place of his domicile.MR. OPLE. Thank you for citing the jurisprudence.It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of suffrage, at least a substan

segment of these overseas Filipino communities. The Committee, of course, is aware that when this Article of the Constituexplicitly and unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a logistical exercise of gloproportions. In effect, this will require budgetary and administrative commitments on the part of the Philippine governmmainly through the COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of this mechanthat will be put in place to make effective the right to vote. Therefore, seeking shelter in some wise jurisprudence of the past m

not be sufficient to meet the demands of the right of suffrage for Filipinos abroad that I have mentioned. But I want to thankCommittee for saying that an amendment to this effect may be entertained at the proper time. . . . . . . . . .

33 (Emphasis supplied

Thus, the Constitutional Commission recognized the fact that while millions of Filipinos reside abroad principally for economic reasons hence they contribute in no small measure to the economic uplift of this country, their voices are marginal insofar as the choice of country’s leaders is concerned. The Constitutional Commission realized that under the laws then existing and considering the novelty of the system of absentee votinthis jurisdiction, vesting overseas Filipinos with the right to vote would spawn constitutional problems especially because the Constitutself provides for the residency requirement of voters:

MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term "absentee voting" also inclutransient voting; meaning, those who are, let us say, studying in Manila need not go back to their places of registration, instance, in Mindanao, to cast their votes.MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.MR. REGALADO. How about those people who cannot go back to the places where they are registered?MR. MONSOD. Under the present Election Code, there are provisions for allowing students and military people who temporarily in another place to register and vote. I believe that those situations can be covered by the Omnibus Election Code.reason we want absentee voting to be in the Constitution as a mandate to the legislature is that there could be inconsistency on

residence rule if it is just a question of legislation by Congress. So, by allowing it and saying that this is possible, then legislation

take care of the rest .34

(Emphasis supplied)Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the inapplicability of the residency requiremenSection 1. It is precisely to avoid any problems that could impede the implementation of its pursuit to enfranchise the largest numbe

qualified Filipinos who are not in the Philippines that the Constitutional Commission explicitly mandated Congress to provide a systemoverseas absentee voting.The discussion of the Constitutional Commission on the effect of the residency requirement prescribed by Section 1, Article V of Constitution on the proposed system of absentee voting for qualified Filipinos abroad is enlightening:

MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for the exercise of the right of suffragehaving resided in the Philippines for at least one year and in the place where they propose to vote for at least six months precethe elections. What is the effect of these mandatory requirements on the matter of the exercise of the right of suffrage by absentee voters like Filipinos abroad?THE PRESIDENT. Would Commissioner Monsod care to answer?MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the domicile requirements as well as qualifications and disqualifications would be the same.THE PRESIDENT. Are we leaving it to the legislature to devise the system?FR. BERNAS. I think there is a very legitimate problem raised there.

THE PRESIDENT. Yes.MR. BENGZON. I believe Commissioner Suarez is clarified.FR. BERNAS. But I think it should be further clarified with regard to the residence requirement or the place where they votpractice; the understanding is that it is flexible. For instance, one might be a resident of Naga or domiciled therein, but he satisthe requirement of residence in Manila, so he is able to vote in Manila.MR. TINGSON. Madam President, may I then suggest to the Committee to change the word "Filipinos" to QUALIFIED FILIPVOTERS. Instead of "VOTING BY FILIPINOS ABROAD," it should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFVOTERS LIVING ABROAD, would that not satisfy the requirement?THE PRESIDENT. What does Commissioner Monsod say?MR. MONSOD. Madam President, I think I would accept the phrase "QUALIFIED FILIPINOS ABROAD" because "QUALIFIED" woassume that he has the qualifications and none of the disqualifications to vote.MR. TINGSON. That is right. So does the Committee accept?

FR. BERNAS. "QUALIFIED FILIPINOS ABROAD"?



THE PRESIDENT. Does the Committee accept the amendment?MR. REGALADO. Madam President.THE PRESIDENT. Commissioner Regalado is recognized.MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment, I specifically stated that the NatioAssembly shall prescribe a system which will enable qualified citizens, temporarily absent from the Philippines, to vote. Accordto Commissioner Monsod, the use of the phrase "absentee voting" already took that into account as its meaning. That is referto qualified Filipino citizens temporarily abroad.MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we will leave it up to the legislaassembly, for example, to require where the registration is. If it is, say, members of the diplomatic corps who may be continuoabroad for a long time, perhaps, there can be a system of registration in the embassies. However, we do not like to preempt

legislative assembly.THE PRESIDENT. Just to clarify, Commissioner Monsod’s amendment is only to provide a system. MR. MONSOD. Yes.THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for these absentee voters.MR. MONSOD. That is right. They must have the qualifications and none of the disqualifications.THE PRESIDENT. It is just to devise a system by which they can vote.MR. MONSOD. That is right, Madam President.

35 (Emphasis supplied)

Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the responsibility of devising a system of absenvoting. The qualifications of voters as stated in Section 1 shall remain except for the residency requirement. This is in fact the reason wthe Constitutional Commission opted for the term qualified Filipinos abroad with respect to the system of absentee voting that Congshould draw up. As stressed by Commissioner Monsod, by the use of the adjective qualified with respect to Filipinos abroad, assumption is that they have the "qualifications and none of the disqualifications to vote." In fine-tuning the provision on absentee votthe Constitutional Commission discussed how the system should work:

MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case of qualified Filipino citizens residabroad and exercising their right of suffrage, they can cast their votes for the candidates in the place where they were registere

vote in the Philippines. So as to avoid any complications, for example, if they are registered in Angeles City, they could not votea mayor in Naga City.In other words, if that qualified voter is registered in Angeles City, then he can vote only for the local and national candidateAngeles City. I just want to make that clear for the record.MR. REGALADO. Madam President.THE PRESIDENT. What does Commissioner Regalado say?MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that this envisions Filipinos residing abroThe understanding in the amendment is that the Filipino is temporarily abroad. He may not be actually residing abroad; he m

just be there on a business trip. It just so happens that the day before the elections he has to fly to the United States, so he conot cast his vote. He is temporarily abroad, but not residing there. He stays in a hotel for two days and comes back. This is

limited only to Filipinos temporarily residing abroad. But as long as he is temporarily abroad on the date of the elections, thencan fall within the prescription of Congress in that situation.MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this clarification on record.MR. MONSOD. Madam President, to clarify what we mean by "temporarily abroad," it need not be on very short trips. One caabroad on a treaty traders visa. Therefore, when we talk about registration, it is possible that his residence is in Angeles andwould be able to vote for the candidates in Angeles, but Congress or the Assembly may provide the procedure for registration,

listing one’s name, in a registry list in the embassy abroad . That is still possible under the system.FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with this.Suppose we have a situation of a child of a diplomatic officer who reaches the voting age while living abroad and he has neregistered here. Where will he register? Will he be a registered voter of a certain locality in the Philippines?MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the registration requirements in an embin the United States and his name is then entered in the official registration book in Angeles City, for instance.FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered voter of a locality here.

MR. MONSOD. That is right. He does not have to come home to the Philippines to comply with the registration procedure hereFR. BERNAS. So, he does not have to come home.MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more clarifications needed from the body.Also, the Floor Leader is happy to announce that there are no more registered Commissioners to propose amendments. So I mthat we close the period of amendments.


t is clear from these discussions of the members of the Constitutional Commission that they intended to enfranchise as much as possall Filipino citizens abroad who have not abandoned their domicile of origin. The Commission even intended to extend to young Filipwho reach voting age abroad whose parents’ domicile of origin is in the Philippines, and consider them qualified a s voters for the first timt is in pursuance of that intention that the Commission provided for Section 2 immediately after the residency requirement of Section 1

the doctrine of necessary implication in statutory construction, which may be applied in construing constitutional provisions,37

the stratocation of Section 2 indicates that the Constitutional Commission provided for an exception to the actual residency requirement of Sectio

with respect to qualified Filipinos abroad. The same Commission has in effect declared that qualified Filipinos who are not in the Philipp

may be allowed to vote even though they do not satisfy the residency requirement in Section 1, Article V of the Constitution.



That Section 2 of Article V of the Constitution is an exception to the residency requirement found in Section 1 of the same Article was in the subject of debate when Senate Bill No. 2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:

Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional provisions. I think the sponsor awould agree that the Constitution is supreme in any statute that we may enact.Let me read Section 1, Article V, of the Constitution entitled, "Suffrage." It says:

Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise disqualified by law, who are at leeighteen years of age, and who shall have resided in the Philippines for at least one year and in the place wherein tpropose to vote for at least six months immediately preceding the election.

Now, Mr. President, the Constitution says, "who shall have resided in the Philippines." They are permanent immigrants. They hchanged residence so they are barred under the Constitution. This is why I asked whether this committee amendment whic

fact does not alter the original text of the bill will have any effect on this?Senator Angara. Good question, Mr. President. And this has been asked in various fora. This is in compliance with the ConstitutOne, the interpretation here of "residence" is synonymous with "domicile."As the gentleman and I know, Mr. President, "domicile" is the intent to return to one’s home. And the fact that a Filipino may h

been physically absent from the Philippines and may be physically a resident of the United States, for example, but has a cl

intent to return to the Philippines, will make him qualified as a resident of the Philippines under this law .This is consistent, Mr. President, with the constitutional mandate that we – that Congress – must provide a franchise to oversFilipinos.If we read the Constitution and the suffrage principle literally as demanding physical presence, then there is no way we can pro

for offshore voting to our offshore kababayan, Mr. President.Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it reads: "The Congress shall provide a systfor securing the secrecy and sanctity of the ballot as well as a system for absentee voting by qualified Filipinos abroad."The key to this whole exercise, Mr. President, is "qualified." In other words, anything that we may do or say in granting

compatriots abroad must be anchored on the proposition that they are qualified. Absent the qualification, they cannot vote. A

"residents" (sic) is a qualification.I will lose votes here from permanent residents so-called "green-card holders", but the Constitution is the Constitution. We cancompromise on this. The Senate cannot be a party to something that would affect or impair the Constitution.Look at what the Constitution says – "In the place wherein they propose to vote for at least six months immediately precedingelection."Mr. President, all of us here have run (sic) for office.I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only by a creek. But one who voteMakati cannot vote in Pateros unless he resides in Pateros for six months. That is how restrictive our Constitution is. I am talking even about the Election Code. I am talking about the Constitution.As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he must do so, make the transfemonths before the election, otherwise, he is not qualified to vote.

That is why I am raising this point because I think we have a fundamental difference here.Senator Angara. It is a good point to raise, Mr. President. But it is a point already well-debated even in the constitutiocommission of 1986. And the reason Section 2 of Article V was placed immediately after the six-month/one-year reside

requirement is to demonstrate unmistakably that Section 2 which authorizes absentee voting is an exception to the six-month/o

year residency requirement . That is the first principle, Mr. President, that one must remember.The second reason, Mr. President, is that under our jurisprudence – and I think this is so well-entrenched that one need not arabout it – "residency " has been interpreted as synonymous with "domicile."But the third more practical reason, Mr. President, is, if we follow the interpretation of the gentleman, then it is legally constitutionally impossible to give a franchise to vote to overseas Filipinos who do not physically live in the country, which is qridiculous because that is exactly the whole point of this exercise – to enfranchise them and empower them to vote.

38 (Emph

supplied)Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting process, to wit:

SEC. 4. Coverage. – All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least eighteen (18) year

age on the day of elections, may vote for president, vice-president, senators and party-list representatives.which does not require physical residency in the Philippines; and Section 5 of the assailed law which enumerates those who disqualified, to wit:

SEC. 5. Disqualifications. – The following shall be disqualified from voting under this Act:a) Those who have lost their Filipino citizenship in accordance with Philippine laws;b) Those who have expressly renounced their Philippine citizenship and who have pledged allegiance to a foreign country;c) Those who have committed and are convicted in a final judgment by a court or tribunal of an offense punishableimprisonment of not less than one (1) year, including those who have committed and been found guilty of Disloyalty as defunder Article 137 of the Revised Penal Code, such disability not having been removed by plenary pardon or amnesty: Provi

however , That any person disqualified to vote under this subsection shall automatically acquire the right to vote upon expiratiofive (5) years after service of sentence; Provided , further , That the Commission may take cognizance of final judgments issuedforeign courts or tribunals only on the basis of reciprocity and subject to the formalities and processes prescribed by the Rule

Court on execution of judgments;



d) An immigrant or a permanent resident who is recognized as such in the host country, unless he/she executes, upon registratan affidavit prepared for the purpose by the Commission declaring that he/she shall resume actual physical permanent residein the Philippines not later than three (3) years from approval of his/her registration under this Act. Such affidavit shall also stthat he/she has not applied for citizenship in another country. Failure to return shall be cause for the removal of the name ofimmigrant or permanent resident from the National Registry of Absentee Voters and his/her permanent disqualification to votabsentia.e) Any citizen of the Philippines abroad previously declared insane or incompetent by competent authority in the Philippineabroad, as verified by the Philippine embassies, consulates or foreign service establishments concerned, unless such competauthority subsequently certifies that such person is no longer insane or incompetent.

As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an immigrant or permanent resident who is "recognize

such in the host country" because immigration or permanent residence in another country implies renunciation of one’s residen ce incountry of origin. However, same Section allows an immigrant and permanent resident abroad to register as voter for as long as he/executes an affidavit to show that he/she has not abandoned his domicile in pursuance of the constitutional intent expressed in Sectioand 2 of Article V that "all citizens of the Philippines not otherwise disqualified by law" must be entitled to exercise the right of suffrand, that Congress must establish a system for absentee voting; for otherwise, if actual, physical residence in the Philippines is requirthere is no sense for the framers of the Constitution to mandate Congress to establish a system for absentee voting.Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or enfranchising act. The affidavit requireSection 5(d) is not only proof of the intention of the immigrant or permanent resident to go back and resume residency in the Philippibut more significantly, it serves as an explicit expression that he had not in fact abandoned his domicile of origin. Thus, it is not correcsay that the execution of the affidavit under Section 5(d) violates the Constitution that proscribes "provisional registration or a promise voter to perform a condition to be qualified to vote in a political exercise."To repeat, the affidavit is required of immigrants and permanent residents abroad because by their status in their host countries, they presumed to have relinquished their intent to return to this country; thus, without the affidavit, the presumption of abandonmen

Philippine domicile shall remain.Further perusal of the transcripts of the Senate proceedings discloses another reason why the Senate required the execution of affidavit. It wanted the affiant to exercise the option to return or to express his intention to return to his domicile of origin and notpreempt that choice by legislation. Thus:

Senator Villar. Yes, we are going back.It states that: "For Filipino immigrants and those who have acquired permanent resident status abroad," a requirement forregistration is the submission of "a Sworn Declaration of Intent to Return duly sworn before any Philippine embassy or consuofficial authorized to administer oath…" Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn Declaration to include only those whave the intention of returning to be qualified to exercise the right of suffrage? What if the Filipino immigrant has no purposreturning? Is he automatically disbarred from exercising this right to suffrage?Senator Angara. The rationale for this, Mr. President, is that we want to be expansive and all-inclusive in this law. That as lon

he is a Filipino, no matter whether he is a green-card holder in the U.S. or not, he will be authorized to vote . But if he is alreagreen-card holder, that means he has acquired permanent residency in the United States, then he must indicate an intentioreturn. This is what makes for the definition of "domicile." And to acquire the vote, we thought that we would require immigrants and the green-card holders . . . Mr. President, the three administration senators are leaving, maybe we may ask fovote [Laughter].Senator Villar. For a merienda, Mr. President.Senator Angara. Mr. President, going back to the business at hand. The rationale for the requirement that an immigrant or a grecard holder should file an affidavit that he will go back to the Philippines is that, if he is already an immigrant or a green-cholder, that means he may not return to the country any more and that contradicts the definition of "domicile" under the law.But what we are trying to do here, Mr. President, is really provide the choice to the voter . The voter, after consulting his lawyeafter deliberation within the family, may decide "No, I think we are risking our permanent status in the United States if we filaffidavit that we want to go back." But we want to give him the opportunity to make that decision. We do not want to make t

decision for him.39

(Emphasis supplied)

The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are disqualified to run for any elective office findsapplication to the present case because the Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos whommigrants and permanent residents in their host countries.n the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be considered as a "qualified citizen of

Philippines abroad" upon fulfillment of the requirements of registration under the new law for the purpose of exercising their righsuffrage.t must be emphasized that Section 5(d) does not only require an affidavit or a promise to "resume actual physical permanent residenc

the Philippines not later than three years from approval of his/her registration," the Filipinos abroad must also declare that they have applied for citizenship in another country. Thus, they must return to the Philippines; otherwise, their failure to return "shall be cause forremoval" of their names "from the National Registry of Absentee Voters and his/her permanent disqualification to vote in absentia."Thus, Congress crafted a process of registration by which a Filipino voter permanently residing abroad who is at least eighteen years not otherwise disqualified by law, who has not relinquished Philippine citizenship and who has not actually abandoned his/her intention

return to his/her domicile of origin, the Philippines, is allowed to register and vote in the Philippine embassy, consulate or other fore



service establishments of the place which has jurisdiction over the country where he/she has indicated his/her address for purposes ofelections, while providing for safeguards to a clean election.

Thus, Section 11 of R.A. No. 9189 provides:SEC. 11. Procedure for Application to Vote in Absentia. – 11.1. Every qualified citizen of the Philippines abroad whose application for registration has been approved, including thpreviously registered under Republic Act No. 8189, shall, in every national election, file with the officer of the embassy, consuor other foreign service establishment authorized by the Commission, a sworn written application to vote in a form prescribedthe Commission. The authorized officer of such embassy, consulate or other foreign service establishment shall transmit to Commission the said application to vote within five (5) days from receipt thereof. The application form shall be accomplishedtriplicate and submitted together with the photocopy of his/her overseas absentee voter certificate of registration.

11.2. Every application to vote in absentia may be done personally at, or by mail to, the embassy, consulate or foreign serestablishment, which has jurisdiction over the country where he/she has indicated his/her address for purposes of the election11.3. Consular and diplomatic services rendered in connection with the overseas absentee voting processes shall be mavailable at no cost to the overseas absentee voter.

Contrary to petitioner’s claim that Section 5(d) circumvents the Constitution, Congress enacted the law prescribing a system of overabsentee voting in compliance with the constitutional mandate. Such mandate expressly requires that Congress provide a systemabsentee voting that necessarily presupposes that the "qualified citizen of the Philippines abroad" is not physically present in the counThe provisions of Sections 5(d) and 11 are components of the system of overseas absentee voting established by R.A. No. 9189. qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile in the Philippines. He is presumed not to host his domicile by his physical absence from this country. His having become an immigrant or permanent resident of his host country d

not necessarily imply an abandonment of his intention to return to his domicile of origin, the Philippines. Therefore, under the law, he mbe given the opportunity to express that he has not actually abandoned his domicile in the Philippines by executing the affidavit requireSections 5(d) and 8(c) of the law.

Petitioner’s speculative apprehension that the implementation of Section 5(d) would affect the credibility of the elections is insignificanwhat is important is to ensure that all those who possess the qualifications to vote on the date of the election are given the opportuand permitted to freely do so. The COMELEC and the Department of Foreign Affairs have enough resources and talents to ensure ntegrity and credibility of any election conducted pursuant to R.A. No. 9189.

As to the eventuality that the Filipino abroad would renege on his undertaking to return to the Philippines, the penalty of perpetdisenfranchisement provided for by Section 5(d) would suffice to serve as deterrence to non-compliance with his/her undertaking unthe affidavit.Petitioner argues that should a sizable number of "immigrants" renege on their promise to return, the result of the elections wouldaffected and could even be a ground to contest the proclamation of the winning candidates and cause further confusion and doubt on ntegrity of the results of the election. Indeed, the probability that after an immigrant has exercised the right to vote, he shall opt to remn his host country beyond the third year from the execution of the affidavit, is not farfetched. However, it is not for this Court to determ

the wisdom of a legislative exercise. As expressed in Tañada vs. Tuvera,40

the Court is not called upon to rule on the wisdom of the law o

repeal it or modify it if we find it impractical.Congress itself was conscious of said probability and in fact, it has addressed the expected problem. Section 5(d) itself provides fodeterrence which is that the Filipino who fails to return as promised stands to lose his right of suffrage. Under Section 9, should a registeoverseas absentee voter fail to vote for two consecutive national elections, his name may be ordered removed from the National Regiof Overseas Absentee Voters.Other serious legal questions that may be raised would be: what happens to the votes cast by the qualified voters abroad who were able to return within three years as promised? What is the effect on the votes cast by the non-returnees in favor of the winning candidaThe votes cast by qualified Filipinos abroad who failed to return within three years shall not be invalidated because they were qualifievote on the date of the elections, but their failure to return shall be cause for the removal of the names of the immigrants or permanresidents from the National Registry of Absentee Voters and their permanent disqualification to vote in absentia.n fine, considering the underlying intent of the Constitution, the Court does not find Section 5(d) of R.A. No. 9189 as constitution

defective.B. Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act in contravention of Section 4, Article VII of the Constitution ?

Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president, vice-president, senators and partyrepresentatives.

Section 18.5 of the same Act provides:SEC. 18. On-Site Counting and Canvassing. – . . . . . . . . .18. 5 The canvass of votes shall not cause the delay of the proclamation of a winning candidate if the outcome of the election not be affected by the results thereof. Notwithstanding the foregoing, the Commission is empowered to order the proclamatio

winning candidates despite the fact that the scheduled election has not taken place in a particular country or countries, if holding of elections therein has been rendered impossible by events, factors and circumstances peculiar to such countrycountries, in which events, factors and circumstances are beyond the control or influence of the Commission. (Emphasis supplie

Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the COMELEC to order the proclamation of wincandidates insofar as it affects the canvass of votes and proclamation of winning candidates for president and vice-president

unconstitutional because it violates the following provisions of paragraph 4, Section 4 of Article VII of the Constitution:



SEC. 4 . . .The returns of every election for President and Vice-President, duly certified by the board of canvassers of each province or cshall be transmitted to the Congress, directed to the President of the Senate. Upon receipt of the certificates of canvass, President of the Senate shall, not later than thirty days after the day of the election, open all the certificates in the presence ofSenate and the House of Representatives in joint public session, and the Congress, upon determination of the authenticity and execution thereof in the manner provided by law, canvass the votes.The person having the highest number of votes shall be proclaimed elected, but in case two or more shall have an equal highest number of votes, one of them shall forthwith be chosen by the vote of a majority of all the Members of both Houses ofCongress, voting separately.The Congress shall promulgate its rules for the canvassing of the certificates.

. . .which gives to Congress the duty to canvass the votes and proclaim the winning candidates for president and vice-president.The Solicitor General asserts that this provision must be harmonized with paragraph 4, Section 4, Article VII of the Constitution and shobe taken to mean that COMELEC can only proclaim the winning Senators and party-list representatives but not the President and VPresident.

41

Respondent COMELEC has no comment on the matter.ndeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is far too sweeping that it necessarily includes

proclamation of the winning candidates for the presidency and the vice-presidency.Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the Constitution only insofar as said Section totdisregarded the authority given to Congress by the Constitution to proclaim the winning candidates for the positions of president and vpresident.n addition, the Court notes that Section 18.4 of the law, to wit:

18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special Board of Canvassers shall transmit

facsimile, electronic mail, or any other means of transmission equally safe and reliable the Certificates of Canvass and Statements of Votes to the Commission, . . . [Emphasis supplied]

clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the returns of every election for President and VPresident shall be certified by the board of canvassers to Congress.Congress could not have allowed the COMELEC to usurp a power that constitutionally belongs to it or, as aptly stated by petitionerencroach "on the power of Congress to canvass the votes for president and vice-president and the power to proclaim the winners for said positions." The provisions of the Constitution as the fundamental law of the land should be read as part of The Overseas Absen

Voting Act of 2003 and hence, the canvassing of the votes and the proclamation of the winning candidates for president and vice-presidfor the entire nation must remain in the hands of Congress.C. Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article IX-A of the Constitution?Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common Provisions) of the Constitution, to wit:

Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service Commission, the Commission

Elections, and the Commission on Audit. (Emphasis supplied)He submits that the creation of the Joint Congressional Oversight Committee with the power to review, revise, amend and approvemplementing Rules and Regulations promulgated by the COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC wh

as a constitutional body, is not under the control of either the executive or legislative departments of government; that only the COMEtself can promulgate rules and regulations which may be changed or revised only by the majority of its members; and that should the r

promulgated by the COMELEC violate any law, it is the Court that has the power to review the same via the petition of any interested pancluding the legislators.t is only on this question that respondent COMELEC submitted its Comment. It agrees with the petitioner that Sections 19 and 25 of R

No. 9189 are unconstitutional. Like the petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections uSection 1, Article IX-A of the Constitution providing for the independence of the constitutional commissions such as the COMELEC. It assthat its power to formulate rules and regulations has been upheld in Gallardo vs. Tabamo, Jr.

42 where this Court held that the power of

COMELEC to formulate rules and regulations is implicit in its power to implement regulations under Section 2(1) of Article IX-C43

ofConstitution. COMELEC joins the petitioner in asserting that as an independent constitutional body, it may not be subject to interferenc

any government instrumentality and that only this Court may review COMELEC rules and only in cases of grave abuse of discretion.The COMELEC adds, however, that another provision, vis-à-vi s its rule-making power, to wit:

SEC. 17. Voting by Mail . – 17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not more than three (3) countries, subjecthe approval of the Congressional Oversight Committee. Voting by mail may be allowed in countries that satisfy the followconditions:a) Where the mailing system is fairly well-developed and secure to prevent occasion for fraud;b) Where there exists a technically established identification system that would preclude multiple or proxy voting; andc) Where the system of reception and custody of mailed ballots in the embassies, consulates and other foreign servestablishments concerned are adequate and well-secured.Thereafter, voting by mail in any country shall be allowed only upon review and approval of the Joint Congressional OversCommittee . . . . . . . . . (Emphasis supplied)

s likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence of constitutional commissions.



The Solicitor General takes exception to his prefatory statement that the constitutional challenge must fail and agrees with the petitiothat Sections 19 and 25 are invalid and unconstitutional on the ground that there is nothing in Article VI of the Constitution on LegislaDepartment that would as much as imply that Congress has concurrent power to enforce and administer election laws with the COMELand by the principles of exclusio unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally enumerated powerCongress circumscribe its authority to the exclusion of all others.The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are unconstitutional. Thus, there is no actual isforged on this question raised by petitioner.However, the Court finds it expedient to expound on the role of Congress through the Joint Congressional Oversight Committee (JCOC)à-vis the independence of the COMELEC, as a constitutional body.R.A. No. 9189 created the JCOC, as follows:

SEC. 25. Joint Congressional Oversight Committee. – A Joint Congressional Oversight Committee is hereby created, composethe Chairman of the Senate Committee on Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senadesignated by the Senate President, and the Chairman of the House Committee on Suffrage and Electoral Reforms, and sevenother Members of the House of Representatives designated by the Speaker of the House of Representatives: Provided , That, ofseven (7) members to be designated by each House of Congress, four (4) should come from the majority and the remaining th(3) from the minority.The Joint Congressional Oversight Committee shall have the power to monitor and evaluate the implementation of this Act. It sreview, revise, amend and approve the Implementing Rules and Regulations promulgated by the Commission. (Emphasis suppliSEC. 19. Authority of the Commission to Promulgate Rules. – The Commission shall issue the necessary rules and regulationeffectively implement the provisions of this Act within sixty (60) days from the effectivity of this Act. The Implementing Rules Regulations shall be submitted to the Joint Congressional Oversight Committee created by virtue of this Act for prior approval.. . . . . . . . . (Emphasis supplied)

Composed of Senators and Members of the House of Representatives, the Joint Congressional Oversight Committee (JCOC) is a pu

egislative body. There is no question that the authority of Congress to "monitor and evaluate the implementation" of R.A. No. 918geared towards possible amendments or revision of the law itself and thus, may be performed in aid of its legislation.However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the JCOC the following functions: (a) to "review, revamend and approve the Implementing Rules and Regulations" (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b) subjecthe approval of the JCOC [Section 17.1], the voting by mail in not more than three countries for the May 2004 elections and in any coudetermined by COMELEC.The ambit of legislative power under Article VI of the Constitution is circumscribed by other constitutional provisions. One such provisioSection 1 of Article IX-A of the 1987 Constitution ordaining that constitutional commissions such as the COMELEC shall be "independentnterpreting Section 1, Article X of the 1935 Constitution providing that there shall be an independent COMELEC, the Court has held t

"[w]hatever may be the nature of the functions of the Commission on Elections, the fact is that the framers of the Constitution wanted be independent from the other departments of the Government."

44 In an earlier case, the Court elucidated:

The Commission on Elections is a constitutional body. It is intended to play a distinct and important part in our scheme

government. In the discharge of its functions, it should not be hampered with restrictions that would be fully warranted in the of a less responsible organization. The Commission may err, so may this court also. It should be allowed considerable latitud

devising means and methods that will insure the accomplishment of the great objective for which it was created – free, orderly

honest elections. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute gross abusdiscretion, this court should not interfere. Politics is a practical matter, and political questions must be dealt with realistically –

from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with politstrategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageposition to decide complex political questions.


The Court has no general powers of supervision over COMELEC which is an independent body "except those specifically granted by Constitution," that is, to review its decisions, orders and rulings.

46 In the same vein, it is not correct to hold that because of its recogni

extensive legislative power to enact election laws, Congress may intrude into the independence of the COMELEC by exercising supervispowers over its rule-making authority.By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to "issue the necessary rules and regulations to effecti

mplement the provisions of this Act within sixty days from the effectivity of this Act." This provision of law follows the usual procedurdrafting rules and regulations to implement a law – the legislature grants an administrative agency the authority to craft the rules regulations implementing the law it has enacted, in recognition of the administrative expertise of that agency in its particular fieloperation.

47 Once a law is enacted and approved, the legislative function is deemed accomplished and complete. The legislative funct

may spring back to Congress relative to the same law only if that body deems it proper to review, amend and revise the law, but certanot to approve, review, revise and amend the IRR of the COMELEC.By vesting itself with the powers to approve, review, amend, and revise the IRR for The Overseas Absentee Voting Act of 2003, Congwent beyond the scope of its constitutional authority. Congress trampled upon the constitutional mandate of independence of COMELEC. Under such a situation, the Court is left with no option but to withdraw from its usual reticence in declaring a provision of unconstitutional.The second sentence of the first paragraph of Section 19 stating that "[t]he Implementing Rules and Regulations shall be submitted toJoint Congressional Oversight Committee created by virtue of this Act for prior approval," and the second sentence of the second paragr

of Section 25 stating that "[i]t shall review, revise, amend and approve the Implementing Rules and Regulations promulgated by



Commission," whereby Congress, in both provisions, arrogates unto itself a function not specifically vested by the Constitution, shouldstricken out of the subject statute for constitutional infirmity. Both provisions brazenly violate the mandate on the independence of COMELEC.Similarly, the phrase, "subject to the approval of the Congressional Oversight Committee" in the first sentence of Section 17.1 wempowers the Commission to authorize voting by mail in not more than three countries for the May, 2004 elections; and the phrase, "oupon review and approval of the Joint Congressional Oversight Committee" found in the second paragraph of the same section unconstitutional as they require review and approval of voting by mail in any country after the 2004 elections. Congress may not conupon itself the authority to approve or disapprove the countries wherein voting by mail shall be allowed, as determined by the COMEpursuant to the conditions provided for in Section 17.1 of R.A. No. 9189.

48 Otherwise, Congress would overstep the bounds of

constitutional mandate and intrude into the independence of the COMELEC.

During the deliberations, all the members of the Court agreed to adopt the separate opinion of Justice Reynato S. Puno as part ofponencia on the unconstitutionality of Sections 17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powgiven to the Joint Congressional Oversight Committee.

WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are declared VOID for beUNCONSTITUTIONAL:a) The phrase in the first sentence of the first paragraph of Section 17.1, to wit: " subject to the approval of the Joint Congressio

Oversight Committee;"b) The portion of the last paragraph of Section 17.1, to wit: "only upon review and approval of the Joint Congressional Overs

Committee;"c) The second sentence of the first paragraph of Section 19, to wit: " The Implementing Rules and Regulations shall be submitte

the Joint Congressional Oversight Committee created by virtue of this Act for prior approval ;" andd) The second sentence in the second paragraph of Section 25, to wit: "It shall review, revise, amend and approve

Implementing Rules and Regulations promulgated by the Commission" of the same law ;

for being repugnant to Section 1, Article IX-A of the Constitution mandating the independence of constitutional commission, suchCOMELEC.The constitutionality of Section 18.5 of R.A. No. 9189 is UPHELD with respect only to the authority given to the COMELEC to proclaim winning candidates for the Senators and party-list representatives but not as to the power to canvass the votes and proclaim the winncandidates for President and Vice-President which is lodged with Congress under Section 4, Article VII of the Constitution.The constitutionality of Section 5(d) is UPHELD.Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be in full force and effect.SO ORDERED.

[G.R. NO. 158791 : February 10, 2006]

CIVIL SERVICE COMMISSION, Petitioner, v. DEPARTMENT OF BUDGET AND MANAGEMENT, Respondent.

R E S O L U T I O N

CARPIO MORALES, J.:

Before this Court is the Motion for Reconsideration of respondent Department of Budget and Management (DBM) praying that this Coreconsider its Decision dated July 22, 2005 (the Decision) granting the subject petition.

The DBM assails this Court's interpretation of Article IX (A) Section 5 of the Constitution, Sections 62, 63, and 64 of the FY 2002 GenAppropriations Act (R.A. No. 9162), and the Resolution of this Court in A.M. No. 92-9-029-SC (Constitutional Mandate on the JudiciaFiscal Autonomy) dated June 3, 1993.

The DBM posits that this Court's ruling that fiscal autonomy means preference in terms of cash allocation is not supported by

deliberations of the 1986 Constitutional Commission, particularly the discussions on the draft article on the Judiciary where the concepfiscal autonomy was, by its claim, introduced.

The DBM cites the comments of then Commissioner Blas Ople expressing concern over "the propensity throughout this Article in its varprovisions to accord the Supreme Court, the lower courts and the judicial system as a whole, a whole plethora of privileges and immunthat are denied the rest of the government of the Republic of the Philippines."1

A close reading of Commissioner Ople's comments shows, however, that he was not questioning nor seeking to qualify the concept"fiscal autonomy" and "automatic release" as provided for in what is now Article VIII Section 3 of the Constitution.2 What was then unconsideration was the original draft article on the Judiciary which, with regard to appropriations, provided as follows:

Section 15. An amount equivalent to not less than two percent of the national budget shall be automatically appropriated and regul

released for the judiciary. (Underscoring supplied)cralawlibrary



What the original draft thus provided for was automatic appropriation, which is not the same as automatic release of appropriations. Tpower to appropriate belongs to Congress, while the responsibility of releasing appropriations belongs to the DBM. Commissioner Oobjected to automatic appropriation, it bears emphasis, not to automatic release of appropriations.

t was Commissioner Christian Monsod who proposed the substitute provision that is now Article VIII Section 3 providing for "fiautonomy" and for automatic and regular release of appropriations.

n support of its position, the DBM also cites Commissioner Monsod's explanation that "[t]he whole purpose of that provision is to prothe independence of the judiciary while at the same time not giving the judiciary what we call a position of privilege by an autom

percentage." Again, what Commissioner Monsod objected to was automatic appropriation for the judiciary, not automatic releaseappropriations once approved. The following statement of Commissioner Monsod, read in its context, does not in any way supportposition taken by the DBM.

The Commissioner will recall that when the provision giving fiscal autonomy to the judiciary was presented to the body, we were the owho denied to it the percentage of the budget because, precisely, we wanted the judiciary to go through the process of budget-makingjustify its budget and to go through the legislature for that justification. But we also said that after having gone through this processhould have fiscal autonomy so that there will be an automatic and regular release of such funds. The whole purpose of that provision iprotect the independence of the judiciary while at the same time not giving the judiciary what we call a position of privilege byautomatic percentage.3 (Emphasis and underscoring supplied)cralawlibrary

The DBM further claims that the constitutional mandate to automatically and regularly release funds does not preclude the implementaof a cash payment schedule for all agencies, including those belonging to the constitutional fiscal autonomous group (CFAG). It explains

meaning of "cash payment schedule" in the context of the budgetary process, from the enactment of the general appropriations law torelease of appropriations, thus.

After the General Appropriations Act (GAA) is signed into law, this Department, in coordination with the agency concerned, prepares financial plan for the year in accordance with its appropriations under the GAA. The result of this exercise is embodied in t he Agency BudMatrix or ABM which reflects the individual obligation authority ceilings of the agency, called the allotment. An allotment allows the ageto enter into a contract or otherwise obligate funds although cash has not yet been received by said agency. Simply put, allotments serva guarantee that the national government will look for cash to support the agency's obligations. Therefore, the closer the allotment ithe amount of its appropriation, the better.

The approved allotment of an ordinary agency does not cover its full appropriations, while those for entities vested with fiscal autonoalways cover the full amount of its appropriations. For instance, allotments for Personal Service of an ordinary agency only cover those

filled positions. In contrast, the Personal Service allotments of agencies enjoying fiscal autonomy are comprehensively released, includthose for positions that are admittedly vacant. At the end of the year, whatever is unspent for Personal Services, particularly for unfpositions, translates to savings, which may be used to augment other items of appropriations.

As emphasized, the ABM of an ordinary agency is disaggregated into those Needing Clearance and Not Needing Clearance. PursuanBudget Execution Guidelines no. 2000-12 dated August 29, 2000 x x x, the full allotment of entities belonging to the CFAG is placed unthe Not Needing Clearance column.

Finally, items under the Not Needing Column of an ordinary agency is further disaggregated to "this release" which represents the inallotment authorized under the ABM, and "for later release" which represents the amount to be released after the conduct of the ageperformance review. In contrast, the total appropriation and allotment of entities belonging to the CFAG are all placed under "this releasince no agency performance review is conducted by the DBM on these entities.

x x x

Thus, in order to ensure that the budgets of agencies vested with fiscal autonomy are released in full, the DBM in a ministerial capaensures that the allotments of agencies belonging to the CFAG (i) cover the full amount of their annual appropriations, and (ii) are subject to any condition. In other words, budgets of fiscal autonomous agencies occupy the highest category in terms of allotment.

x x x

After the ABMs are issued, the Notices of Cash Allocations (NCAs) are issued every month to support approved allotments with cash.

deally, the NCA should cover in full the monthly allotment of the agency. The reality, however, is that every national budget is basedrevenue projections, and that there is an ever present risk that these revenue targets are not met in full during the course of the bud

year. Last FYs 2001 and 2002, for instance, revenue shortfall was at 7.16% and 9.16%, respectively, as shown below under Table 2.



x x x

Further, not all revenue collections are received at the start of the budget year. The cash flow of the national government, like most otpublic institutions, has its highs and lows depending on the tax calendar. Thus, not all of the projected revenues are available for spendat the start of the budget year.

t thus becomes imperative for the Executive Department, through the DBM, to manage the release of funds through implementatiocash payment schedules. For instance, if collections for a given month meet the monthly revenue target, then the NCA for that month scover 100% of the allotment. If, however, collections do not meet the monthly revenue target, then the NCA to be released may not co

100% of the allotment. Add a few more variables, such as amount of deficit and total disbursement of agencies, then one gets a cpayment schedule that varies on a monthly basis.4 (Emphasis and underscoring supplied)cralawlibrary

The DBM goes on to emphasize that it has no discretion on how much cash enters petitioner's coffers, as cash payment schedules "dictated by the amount of revenue collection, borrowings, deficit ceilings and total disbursement program of the national governmenand if the cash payment schedule prescribes that the total cash to be released for a given month is 85% of allotment, then a Notice of CAllocation amounting to 85% of each agency's allotment is released for all agencies. It thus contends that this equality in treatment dnot violate the fiscal autonomy of the agencies belonging to the CFAG, for "since approved allotments of agencies belonging to the CFare higher than ordinary agencies, they automatically get higher cash allocations."6

The DBM's protestation that it has no discretion on the amount of funds released to agencies with fiscal autonomy fails. The Court fithat the DBM, in fact, exercised discretion denied it by the constitutional mandate to automatically release such funds. Understandablshortfall in revenue in a given year would constrain the DBM not to release the total amount appropriated by the GAA for the governm

as a whole during that year. However, the DBM is certainly not compelled by such circumstance to proportionately reduce the fuappropriated for each and every agency. Given a revenue shortfall, it is still very possible for the DBM to release the full amoappropriated for the agencies with fiscal autonomy, especially since, as noted in the Decision, the total appropriation for such agencierecent years does not even reach 3% of the national budget.7 That the full amount is, in fact, not fully released during a given fiscal yeaplainly due to a policy decision of the DBM. Such a decision, whether it goes by the label of "cash payment schedule" or any other tecannot be reconciled with the constitutional mandate that the release to these agencies should be automatic.

Respecting this Court's observation that Sections 62, 63 and 64 of the General Provisions of the FY2002 GAA reflect the legislative intenexcept entities with fiscal autonomy from the possibility of retention or reduction of funds in the event of an unmanageable budget dethe DBM comments as follows:

Unfortunately, the sponsorship speech of Cong. Rolando G. Andaya, Jr. Chairman of the House Committee on Appropriations in justify

the introduction of Sections 63 and 64 (sic) in the FY 2002 GAA, belies such contention. x x x In his speech, he states that the incorporaof Section 62 is due to concerns raised by Congressmen on the general impoundment powers of the President, without distinguishing athe two types of public institutions. More revealing is his explanation in introducing Section 63, which defines unmanageable natiogovernment deficit. He states that in order to discourage the Executive Department from reducing the Internal Revenue Allotment of lgovernment units, there is need to define the legal parameters of "unmanageable deficit". Reference to local government units, whikewise enjoy fiscal autonomy according to the pronouncements of this Honorable Court [Pimentel, Jr. v. Aguirre, 336 SCRA 201 at

(2000)], reveal the true intent of Congress to cover both agencies vested with fiscal autonomy and those without. x x x"8 (Underscosupplied)cralawlibrary

The Court, however, has examined the speech of Congressman Andaya and finds nothing therein that detracts from its ruling. It beemphasis that this Court explicitly observed that Sections 62 and 63 refer to government agencies in general, while Section 64 appspecifically to agencies with fiscal autonomy. It is in these three provisions read together, and not in reading each one in isolation, thatdistinction intended by the legislature becomes evident.

When Congressman Andaya introduced Sections 62 and 63, he was thus speaking of government agencies in general. If he did not texpressly distinguish between agencies with fiscal autonomy and those without, it was because there was no pressing need for him toso. Particularly with regard to Section 62, his speech would reveal that his attention was on a matter that did not call for such distinctinamely, the "deep concern, frustration and despair" expressed by numerous members of Congress "over the impoundmentappropriations by the Department of Budget and Managementand the Office of the President" which, he explained, provided the reabehind Section 62 of the GAA.

As for the mention of local governments in Congressman Andaya's introduction of Section 63, the same does not imply that said proviwas meant to include the agencies belonging to the CFAG. In fact, his speech even suggests that Section 63, rather than itself beingauthorization to the DBM to withhold or reduce appropriations, was merely intended to set a guiding principle for the DBM in those cawhere it already has authority to withhold or reduce such appropriations.



n the case of LGUs, the Congressman explicitly referred to "the provisions of the Local Government Code, R.A. 7160which authorizes reduction of the IRA in the event that there is an 'unmanageable deficit' of the National Government."9 He then stated that Section 63 prompted by the need to set parameters in determining the existence of an "unmanageable deficit."

On the other hand, there is no similar authorization for such reduction in the case of agencies belonging to the CFAG - not even during"unmanageable deficit" - either in the Constitution or in statute. Thus, notwithstanding the inclusion of LGUs, there is no basissupposing that the agencies belonging to the CFAG are also covered by Section 63 of the GAA.

The DBM furthermore argues that this Court's Resolution of June 3, 1993 in A.M. No. 92-9-029-SC10 (the Resolution) reading:

After approval by Congress, the appropriations for the Judiciary shall be automatically and regularly released subject to availability of fu(Underscoring supplied)cralawlibrary

means that fund releases may still be subject to a cash release program.

n support of this argument, the DBM cites a letter dated May 18, 1993 of then Chief Presidential Legal Counsel Antonio T. Carpio (nomember of this Court) to the Secretary of Budget and Management, regarding A.M. No. 92-9-029-SC then pending with this Court.

The letter quotes then Chief Justice Narvasa's summary of this Court's position on the controversy, which summary states, inter alia:

"4) the Court will look to releases by the DBM of funds against the approved budget of the Judiciary, in the full amount sought promptly upon notice; it is willing to consider and pass upon suggestions by the DBM for scheduling of releases; x x x"(Underscosupplied)cralawlibrary

n the same letter, the Chief Presidential Legal Counsel, after considering the Court's position, opined that one of the principles by whthe constitutional mandate on judicial fiscal autonomy can be achieved is that "[a]fter approval by Congress, the appropriations forjudiciary shall be automatically and regularly released subject to availability of funds" - which opinion, the DBM alleges, is the posiadopted by this Court.

nstead of supporting the DBM's position, however, this letter only shows the consistency of this Court in interpreting "automatic releaas requiring the full release of appropriations. The Court's willingness to pass upon suggestions for scheduling of releases in no way impthat it was assenting to an incomplete or delayed release of funds. Rather, it was a recognition by this Court that scheduling of releasesuch, does not violate the Constitution and is, in fact, presupposed in the phrase "automatically and regularly released."

The phrase "subject to availability of funds" must thus be understood in harmony with the constitutional mandate to automatically rele

funds as the same has been consistently interpreted by this Court. It is not an authority for the DBM to implement a policy which, althoabeled "cash payment schedule," actually goes beyond mere scheduling of releases and

effects a withholding and reduction of the approved appropriations, as it did in the present case against petitioner Civil Service Commiss

Finally, while acknowledging the unconstitutionality of imposing a "no report, no release" policy on agencies clothed with fiscal autonothe DBM prays for a clarification that such agencies are still responsible for the timely submission to it of financial reports. The Coconsiders it sufficient to echo the following statements in the Separate Opinion of former Chief Justice Hilario G. Davide, Jr.:

This is not to say that agencies vested with fiscal autonomy have no reporting responsibility at all to the DBM. This is precisely the reawhy guideline No. 5 under the Resolution of 3 June [1993 states that the Supreme Court, or constitutional commissions clothed with fiautonomy for that matter, may submit reports relative to its appropriation "for records purposes only." The word "may" is permiss[Dizon v. Encarnacion, 119 Phil. 20, 22 (1963)], as it is an auxiliary verb manifesting "opportunity or possibility" and, under ordin

circumstances, "implies the possible existence of something." [Supangan, Jr. v. Santos, G.R. No. 84663, 24 August 1990 x nterdependence will work only if it is undertaken within the parameters of the Constitution."

WHEREFORE, the Motion for Reconsideration of respondent Department of Budget and Management is DENIED.

SO ORDERED.

G.R. No. 107852 October 20, 1993GREGORIO M. ARUELO, JR., petitiovs.THE COURT OF APPEALS, PRESIDING JUDGE, REGIONAL TRIAL COURT OF BULACAN, BRANCH 17, MALOLOS BULACAN, and DANILO

GATCHALIAN, respondents.



Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.

Venustiano S. Roxas & Associates for private respondent.

QUIASON, J.:This is a petition for certiorari and prohibition under rule 65 of the Revised Rules of Court, to set aside the Decision of the Court of Appedated November 24, 1992 in CA-G.R. SP No, 28621, which ruled that the answer and counter-protest of respondent Danilo F. Gatchawas filed timely and ordered the Regional Trial Court, Branch 17, Malolos, Bulacan to continue with the proceedings in Civil Case No. 3M-92, the protest case filed by petitioner Gregorio N. Aruelo, Jr.Aruelo and Gatchalian were rival candidates in the May 11, 1992 elections for the office of the Vice-Mayor of the Municipality of BalagProvince of Bulacan. Gatchalian won over Aruelo by a margin of four votes, such that on May 13, 1992, the Municipal Board of Canvas

proclaimed him as the duly elected Vice-Mayor of Balagtas, Bulacan.On May 22, 1992, Aruelo filed with the Commission on Elections (COMELEC) a petition docketed as SPC No. 92-130, seeking to anGatchalian's proclamation on the ground of "fraudulent alteration and tampering" of votes in the tally sheets and the election returns.On June 2, 1992, Aruelo filed with the Regional Trial Court, Branch 17, Malolos, Bulacan, a petition docketed as Civil Case No. 343-Mprotesting the same election. Aruelo, however, informed the trial court of the pendency of the pre-proclamation case before the COMELOn June 10, 1992, Gatchalian was served an Amended Summons from the trial court, giving him five days within which to answer petition. Instead of submitting his answer, Gatchalian filed on June 15, 1992 a Motion to Dismiss claiming that: (a) the petition was filedof time; (b) there was a pending protest case before the COMELEC; and (c) Aruelo failed to pay the prescribed filing fees and cash depon the petition.Meanwhile in SPC Case No. 92-130, the COMELEC on June 6, 1992 denied Aruelo's petition for non-compliance with Section 20 of R.A.7166, which requires the submission of the evidence and documents in support of the petition to annul Gatchalian's proclamation (Roll

42).The trial court, on the other hand, issued an order dated July 10, 1992, denying Gatchalian's Motion to Dismiss and ordering him to file

answer to the petition within five days from notice, otherwise, "a general denial shall be deemed to have been entered" (Rollo, p. 45). trial court also directed Aruelo to pay the deficiency in his filing fee, which the latter complied with. Gatchalian filed a MotionReconsideration of the order but the trial court denied the same on August 3, 1992.On August 6, 1992, Gatchalian filed before the Court of Appeals, a petition for certiorari docketed as CA-G.R. SP No. 28621, which allegrave abuse of discretion on the part of the trial court in denying his Motion to Dismiss and his Motion for Reconsideration.Earlier, that is on July 23, 1992, Gatchalian filed before the trial court a Motion for Bill of Particulars, which was opposed by Aruelo. The court denied Gatchalian's motion in an order dated August 5, 1992, a copy of which was received by him on August 6, 1992.On August 11, 1992, Gatchalian submitted before the trial court his Answer with Counter-Protest and Counterclaim, alleging inter alia, Aruelo was the one who committed the election fraud and that were it not for the said fraud, Gatchalian's margin over Aruelo would hbeen greater. Gatchalian prayed for the dismissal of the petition, the confirmation of his election and the award of damages. On the dayanswer was filed, the trial court issued an order admitting it, and without Gatchalian's specific prayer, directed the revision of ballots inprecincts enumerated in Gatchalian's Counter-Protest and Construction. For this purpose, the trial court ordered the delivery of

contested ballot boxes to the Branch Clerk of Court.On August 14, 1992, Aruelo filed with the trial court a Motion to Reconsider As Well As To Set Aside "Answer with Counter-Protest Counterclaim" Filed Out of Time by Protestee. The trial court, on September 2, 1992, denied Aruelo's motion and forthwith scheduledconstitution of the revision committee.On September 28, 1992, Aruelo prayed before the Court of Appeals for the issuance of a temporary restraining order or a writpreliminary injunction to restrain the trial court from implementing the Order of August 11, 1992, regarding the revision of ballots. Court of Appeals belatedly issued a temporary restraining order on November 9, 1992, after actual revision of the contested ballots enon October 28, 1992.Meanwhile, Gatchalian filed with the Court of Appeals on September 21, 1992 another petition for certiorari (CA-G.R. SP No. 28977), aalleging grave abuse of discretion on the part of the trial court in issuing the Order dated August 5, 1992, which denied his Motion for BiParticulars. The Court of Appeals, in its Resolution dated September 28, 1992, dismissed this petition for lack of merit.On November 24, 1992, the Court of Appeals rendered a decision in CA-G.R. SP No. 28621, denying Gatchalian's petition, but declaredthe same time, that Gatchalian's Answer With Counter-Protest and Counterclaim was timely filed. The appellate court also lifted

temporary restraining order and ordered the trial court to "proceed with dispatch in the proceedings below" (Rollo, p. 212).Hence, this petition.Aruelo claims that in election contests, the COMELEC Rules of Procedure gives the respondent therein only five days from receipsummons within which to file his answer to the petition (Part VI, Rule 35, Sec. 7) and that this five-day period had lapsed when Gatchafiled his answer. According to him, the filing of motions to dismiss and motions for bill of particulars is prohibited by Section 1, Rule 13, II of the COMELEC Rules of Procedure; hence, the filing of said pleadings did not suspend the running of the five-day period, or g

Gatchalian a new five-day period to file his answer.We do not agree.Petitioner filed the election protest (Civil Case No. -343-M-92) with the Regional Trial Court, whose proceedings are governed by Revised Rules of Court.Section 1, Rule 13, Part III of the COMELEC Rules of Procedure is not applicable to proceedings before the regular courts. As expremandated by Section 2, Rule 1, Part I of the COMELEC Rules of Procedure, the filing of motions to dismiss and bill of particulars, shall a

only to proceedings brought before the COMELEC. Section 2, Rule 1, Part I provides:



Sec. 2. Applicability — These rules, except Part VI, shall apply to all actions and proceedings brought beforeCommission. Part VI shall apply to election contests and quo warranto cases cognizable by courts of generalimited jurisdiction.

t must be noted that nowhere in Part VI of the COMELEC Rules of Procedure is it provided that motions to dismiss and bill of particularsnot allowed in election protests or quo warranto cases pending before the regular courts.Constitutionally speaking, the COMELEC can not adopt a rule prohibiting the filing of certain pleadings in the regular courts. The powepromulgate rules concerning pleadings, practice and procedure in all courts is vested on the Supreme Court (Constitution, Art VIII, Se[5]).Private respondent received a copy of the order of the Regional Trial Court denying his motion for a bill of particulars on August 6, 19Under Section 1 (b), Rule 12 of the Revised Rules of Court, a party has at least five days to file his answer after receipt of the order deny

his motion for a bill of particulars. Private respondent, therefore, had until August 11, 1992 within which to file his answer. The Answer wCounter-Protest and Counterclaim filed by him on August 11, 1992 was filed timely.The instant case is different from a pre-proclamation controversy which the law expressly mandates to be resolved in a summproceeding (B.P. Blg. 881, Art. XX, Sec. 246; COMELEC Rules of Procedure, Part V, Rule 27, Sec. 2; Dipatuan v. Commission on Elections,SCRA 86 [1990]). Pre-proclamation controversies should be summarily decided, consistent with the legislators' desire that the canvasthe votes and the proclamation of the winning candidate be done with dispatch and without unnecessary delay. Questions as thnvolving the appreciation of the votes and the conduct of the balloting, which require more deliberate and necessarily lon

consideration, are left for examination in the corresponding election protest (Abella v. Larrazabal, 180 SCRA 509 [1989]; AlontCommission on Elections, 22 SCRA 878 [1968]).An election protest does not merely concern the personal interests of rival candidates for an office. Over and above the desire ofcandidates to win, is the deep public interest to determine the true choice of the people. For this reason, it is a well-established princthat laws governing election protests must be liberally construed to the end that the popular will, expressed in the election of puofficers, will not, by purely technical reasons, be defeated (Unda v. Commission on Elections, 190 SCRA 827 [1990]; De Leon v. Guadiz

104 SCRA 591 [1981]; Macasundig v. Macalangan, 13 SCRA 577 [1965]; Corocoro v. Bascara, 9 SCRA 519 [1963]).We find no grave abuse of discretion on the part of the Court of Appeals.WHEREFORE, the petition is hereby DISMISSED.SO ORDERED.G.R. No. 135869 September 22, 1999RUSTICO H. ANTONIO, petitiovs.COMMISSION ON ELECTIONS and VICENTE T. MIRANDA, JR., respondents.

GONZAGA-REYES, J.: s the period to appeal a decision of a municipal trial court to the Commission on Elections ("COMELEC") in an election protest involvin

barangay position five (5) days per COMELEC Rules of Procedure or ten (10) days as provided for in Republic Act. 66791 and the Omn

Election Code? This is the sole issue posed in the instant petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure seekinannul the order dated August 3, 1998 of the Second Division of the COMELEC,2 dismissing the appeal of petitioner Rustico Antonio

having been filed out of time pursuant to COMELEC Rules of Procedure, and the order promulgated on October 14, 1998 of the COMEen banc, denying petitioner's motion for reconsideration.The antecedents as found by the COMELEC in the order dated October 14, 1998 are:

The parties in this case were rival candidates for the Punong Barangay of Barangay Ilaya, Las Piñas City, MeManila. After the board of canvassers proclaimed protestee-appellant Rustico Antonio, protestant-appeVicente T. Miranda, Jr. filed an election protest docketed as Election Protest Case No. 97-0017 against Antobefore the Metropolitan Trial Court of Las Piñas City (Branch LXXIX). The trial court rendered a Decision dateMarch 1998, the dispositive portion of which states:

WHEREFORE, the Court declares the protestant Vicente Miranda as the duly elected BaranChairman of Barangay Ilaya, Las Piñas City, Metro Manila.

Antonio admitted receipt of the above-quoted decision on 18 March 1998. Subsequently, Antonio filed a No

of Appeal with the trial court on 27 March 1998 or nine (9) days after receipt thereof . Meanwhile, Miramoved to execute the trial court's decision. Rustico, in his Opposition to the Motion for Execution or Execu

Pending Appeal , argued against Miranda's motion for execution. After the trial court denied the motionexecution, the records of this case was forwarded to the Commission (Second Division).On 10 August 1998, protestee-appellant Rustico Antonio received from this Commission (Second DivisionOrder dated 3 August 1998 stating as follows:

In the light of the aforequoted rules, protestee RUSTICO ANTONIO, failed to perfect his appwithin the five (5) days period prescribed for perfecting his appeal, as he filed his NoticeAppeal only on March 27, 1998 or nine (9) days after receipt of the decision sought toappealed.The Period aforestated is jurisdictional and failure of the protestee to perfect his appeal witthe said period deprives the Commission of its appellate jurisdiction.

ACCORDINGLY, the instant appeal is hereby DISMISSED for lack of jurisdiction.



Hence, this motion for reconsideration.The instant Motion for Reconsideration is DENIED and We AFFIRM the Order dated 3 August 1998 of Commission (Second Division).

3

n the instant petition for certiorari , petitioner argues that the COMELEC committed grave abuse of discretion amounting to lacjurisdiction when it dismissed the appeal for the following reasons:

(a) In barangay electoral protest cases, the period of appeal is ten (10) days from receipt of decision of the Metropolitan or Municipal Trial Court. This is provided for by Sec. 9 of R.A. 6and Sec. 252 of the Omnibus Election Code.1âwphi1.nêt (b) The provisions of Sec. 21, Rule 37 of the COMELEC Rules of Procedure providing for a fday period within which to appeal from the decision of the Metropolitan or Municipal T

Court could not prevail upon the express provisions of Rep. Act No. 6679 and Sec. 252 ofOmnibus Election Code;(c) Moreover, the COMELEC committed an error of jurisdiction when it disregarded provisions of Sections 5, 6 & 7, Rule 22 of the COMELEC Rules of Procedure requiring the fof briefs by the appellant and the appellee. The questioned resolution of August 3, 1998 issued motu propio and without prior notice and hearing. The petitioner was fast tracked;(d) The alleged winning margin of the private respondent over the petitioner as found by Metropolitan Trial Court of Las Piñas is only four (4) votes the results being MIRANDA — 1,ANTONIO — 1,167. The people's will must not go on procedural points. "An election proinvolves public interest, and technicalities should not be sanctioned when it will be an obstin the determination of the true will of the electorate in the choice of its public offici[Macasundig vs. Macalanagan, 13 SCRA 577; Vda. De Mesa vs. Mensias, 18 SCRA 533, Julivs. Court of Appeals, 20 SCRA 808; Genete vs. Archangel, 21 SCRA 1178; Maliwanag vs. Herr

25 SCRA 175; De Castro vs. Genete, 27 SCRA 623](e) The questioned resolutions violated the above principle because the COMELEC did appreciate the contested ballots.

4

n dismissing the appeal, the COMELEC relied on Section 21, Rule 35 of the COMELEC Rules of Procedure which reads:Sec. 21. Appeal — From any decision rendered by the court, the aggrieved party may appeal to the Commison Elections within five (5) days after the promulgation of the decision.

On the other hand, petitioner contends that the period of appeal from decisions of the Municipal Trial Courts or Metropolitan Trial Counvolving barangay officials is governed by Section 9 of Republic Act 6679 and Section 252 of the Omnibus Election Code.

Sec. 9 of Republic Act 6679 reads:Sec. 9. A sworn petition contesting the election of a barangay official may be filed with the proper municipametropolitan trial court by any candidate who has duly filed a certificate of candidacy and has been voted fbarangay office within ten (10) days after the proclamation of the results of the election. The trial court s

decide the election protest within thirty (30) days after the filing thereof. The decision of the municipametropolitan trial court may be appealed within ten (10) days from receipt of a copy thereof by the aggrieparty to the regional trial court which shall decide the issue within thirty (30) days from receipt of the appeal whose decision on questions of fact shall be final and non-appealable. For purposes of the barangay electionspre-proclamation cases shall be allowed.

Similarly, Section 252 of the Omnibus Election Code provides:Sec. 252. Election contest for barangay offices. — A sworn petition contesting the election of a barangay offshall be filed with the proper municipal or metropolitan trial court by any candidate who has duly filecertificate of candidacy and has been voted for the same office within ten days after the proclamation of results of the election. The trial court shall decide the election protest within fifteen days after the filing therThe decision of the municipal or metropolitan trial court may be appealed within ten days from receipt of a cthereof by the aggrieved party to the regional trial court which shall decide the case within thirty days fromsubmission, and whose decisions shall be final.

n applying Section 21 of the COMELEC Rules of Procedure rather than Section 9 of Republic Act 6779 and Section 252 of the OmniElection Code, the COMELEC rationalized thus:

Antonio asserts that Section 9 of Republic Act 6679 and Section 252 of the Omnibus ElectCode providing for a ten-day period to appeal prevails over the provisions of the COMERules of Procedure. According to Antonio, quasi-judicial bodies, including this Commisscannot amend an act of Congress and in case of discrepancy between the basic law andinterpretative or administrative ruling, the former prevails. Generally, yes. But the situaherein does not fall within the generic situation contemplated therein.No less than the 1987 Constitution (Article D X-A, Section 6 and Article IX-C, Section 3) graand authorizes this Commission to promulgate its own rules of procedure as long as such r

concerning pleadings and practice do not diminish, increase or modify substantive rig

Hence, the COMELEC Rules of Procedure promulgated in 1993 as amended in 1994 is

ordinary interpretative or administrative ruling. It is promulgated by this Commission pursu



to a constitutionally mandated authority which no legislative enactment can amend, reviserepeal.The COMELEC Rules of Procedure (Rule 37 Section 21) provides that from the decirendered by the court the aggrieved party may appeal to the Commission on Elections wi

five (5) days after the promulgation of the decision. Rule 22 Section 9 (d) of Our RuleProcedure further provides that an appeal from decisions of courts in election protest cmay be dismissed at the instance of the Commission for failure to file the required notic

appeal within the prescribed period .In case at bar, Antonio filed his notice of appeal before the trial court on the ninth (9) day frreceipt of the decision appealed from or four (4) days after the five-day prescribed period

appeal lapsed. Therefore, the present appeal must be dismissed. For it is axiomatic that perfection of an appeal in the manner and within the period laid down by the COMELEC Rof Procedure is not only mandatory but also jurisdictional. As a consequence, the failureperfect an appeal within the prescribed period as required by the Rules has the effectdefeating the right of appeal of a party and precluding the appellate court from acqui

jurisdiction over the case. So the High Court rules in Villanueva vs. Court of Appeals, et . al . SCRA 537). And so, it should also be in the case at bar.Worth noting is that Our Rules of Procedure may be amended, revised or repealed pursuanthe 1987 Constitution (Article VIII Section 5[5]) providing that rules of procedure of . . . qu

judicial bodies shall remain effective unless disapproved by the Supreme Court. But far fbeing disapproved the COMELEC Rules of Procedure received approbation and has constabeen cited by the Supreme Court in a number of decisions such as in the case of Pahilan

Tabalba (230 SCRA 205, at 211) and Rodillas vs. Commission on Elections (245 SCRA 702

704). In the more recent case of Calucag vs. Commission on Elections promulgated on 19 J1997 (G.R. No. 123673), the Supreme Court stated that:Therefore, the COMELEC is the proper appellate court clothed with jurisdiction to hear appeal WHICH APPEAL MUST BE FILED WITHIN FIVE DAYS AFTER THE PROMULGATION OF MTC DECISION. . . (page 4-5).

The repeated recognition given by the Supreme Court of this five-day rule within which to file the required noof appeal will make questionable the legislative enactment providing for a ten-day period.

5

Without adopting the foregoing ratiocination of the COMELEC, we nonetheless find the instant petition devoid of merit.t is beyond cavil that legislative enactments prevail over rules of procedure promulgated by administrative or quasi-judicial bodies and

rules of procedure should be consistent with standing legislative enactments. In relation to the above-quoted Section 9 of Republic 6679 and Section 252 of the Omnibus Election Code, petitioner points out that in Flores vs. Commission on Elections

6, this Court

declared that decisions of the Metropolitan or Municipal Court in election protest cases involving barangay officials are no lon

appealable to the Regional Trial Court but to the COMELEC pursuant to Section 2(2) of Article IX-C of the 1987 Constitution.

7

Petitiosubmits that the dispositive portion in the Flores case only declared unconstitutional that portion of Section 9 of Republic Act 6providing for appeal to the Regional Trial Court but not the ten (10) day period of appeal. The dispositive portion of the Flores case reads

1. Declaring Section 9 of Rep. Act No. 6679 UNCONSTITUTIONAL insofar as it provides that barangay eleccontests decided by the municipal or metropolitan trial court shall be appealable to the regional trial court.

Petitioner admits that the provisions in Republic Act No. 6679 and for that matter the Omnibus Election Code providfor appellate jurisdiction to the Regional Trial Court had been declared unconstitutional in the aforecited Flores casverbatim comparison of both provisions reveals that they provide the same remedy, that is, appeal from a decision ofmunicipal or metropolitan trial court in barangay election cases to the regional trial court. Both provisions provide tharesults of a barangay election may be contested by filing a sworn petition with the municipal trial court within ten dfrom proclamation; (2) the MTC shall decide within thirty days per Republic Act No. 6679 or fifteen days per OmniElection Code; and (3) the decision of the municipal trial court may be appealed to the regional trial court within ten dfrom receipt by the aggrieved party, which decision is final and non-appealable. There is no appreciable basis to mak

distinction between the two provisions, except for their different numbers, to advance that they provide for two differemedies. It would be superfluous to insist on a categorical declaration of the unconstitutionality of the appeal provifor in Sec. 252 of the Omnibus Election Code, as the same appeal in Sec. 9, Republic Act No. 6679 had already bcategorically declared unconstitutional. Further, Sec. 252 of the Omnibus Election Code

8 as amended by the new

Republic Act 6679

9, has in effect, been superseded by the latter. While the appellate procedure has been retained by the amendat

act, Republic Act No. 6679 nonetheless supersedes the verbatim provision in the Omnibus Election Code. Hence, it wnot necessary for Flores to mention Sec. 252 of the Omnibus Election Code, considering that as aforestated, Section Republic Act No. 6679 was a mere reenactment of the former law.

Petitioner is of the opinion, though, that the unconstitutionality extended only as to which court has appellate jurisdiction without affecthe period within which to appeal. According to petitioner, only the portion providing for the appellate jurisdiction of the Regional TCourt in said cases should be deemed unconstitutional. The rest of the provisions, particularly on the period to appeal, free from the t



of unconstitutionality, should remain in force and effect in view of the separability clauses contained in Republic Act 677910

andOmnibus Election Code.

11

We do not agree.First , petitioner's argument raises the presumption that the period to appeal can be severed from the remedy or the appeal itself whicprovided in Section 9, Republic Act 6679 and survive on its own. The presumption cannot be sustained because the period to appeal isessential characteristic and wholly dependent on the remedy.Aptly, the rules on statutory construction prescribe:

The general rule is that where part of a statute is void as repugnant to the Constitution, while another parvalid, the valid portion, if separable from the invalid, may stand and be enforced. The presence of a separabclause in statute creates the presumption that the legislature intended separability, rather than complete nu

of the statute. To justify this result, the valid portion must be so far independent of the invalid portion that fair to presume that the legislature would have enacted it by itself if it had supposed that it could constitutionally enact the other. Enough must remain to make a complete, intelligible, and valid statute, wcarries out the legislative intent. The void provisions must be eliminated without causing results affecting main purpose of the act in a manner contrary to the intention of the legislature. The language used in the invpart of the statute can have no legal effect or efficacy for any purpose whatsoever, and what remains mexpress the legislative will independently of the void part, since the court has no power to legislate.The exception to the general rule is that when the parts of a statute are so mutually dependent and connectas conditions, considerations, inducements, or compensations for each other, as to warrant a belief that legislature intended them as a whole the nullity of one part will vitiate the rest. In making the parts of the stadependent, conditional, or connected with one another, the legislature intended the statute to be carried oua whole and would not have enacted it if one part is void, in which case if some parts are unconstitutional, allother provisions thus dependent, conditional, or connected must fall with them.

12

n the instant petition, the exception applies. Section 9 of Republic Act No. 6679 and Section 252 of the Omnibus Election Co de, withoutconstitutionally infirm portion on the appellate jurisdiction of Regional Trial Courts in barangay election protest cases, does not remcomplete in itself, sensible, capable of being executed and wholly independent of the portion which was rejected. In other words, with elimination of the forum, the period cannot stand on its own. Moreover, when this Court stated that "Section 9 of Rep. Act No. 667declared unconstitutional insofar as it provides that barangay election contests decided by the municipal or metropolitan trial court shaappealable to the regional trial court", it meant to preserve the first two sentences on the original jurisdiction of municipal metropolitan trial courts to try barangay election protests cases but not, as advanced by the petitioner, the ten-day period to appeal toRegional Trial Court. This is the logical and sound interpretation of subject portion of the Flores case.Second , what was invalidated by the Flores case was the whole appeal itself and not just the question of which court to file the petitionthe remedy itself is declared unconstitutional how could the period to appeal possibly survive? How could the time limit exist if thernothing to be done within such time?Third , we cannot indulge in the assumption that Congress still intended, by the said laws, to maintain the ten (10) day period to ap

despite the declaration of unconstitutionality of the appellate jurisdiction of the regional trial court, Republic Act No. 7166

13

amendingOmnibus Election Code, evinces the intent of our lawmakers to expedite the remedial aspect of election controversies. The law approved on November 26, 1991, after the Flores case which was promulgated on April 20, 1990, and presumably, the legislaturenacting the same was cognizant of the ruling in Flores. Said law provides the same five (5) day period to appeal decisions of the trial cn election contests for municipal officers to the COMELEC. Section 22 thereof reads:

Sec. 22. Election Contests for Municipal Officers. — All election contests involving municipal offices filed withRegional Trial Court shall be decided expeditiously. The decision may be appealed to the Commission within (5) days from promulgation or receipt of a copy thereof by the aggrieved party. The Commission shall decide appeal within sixty (60) days after it is submitted for decision, but not later than six (6) months after the filinthe appeal, which decision shall be final, unappealable and executory.

There would be no logic nor reason in ruling that a longer period to appeal to the COMELEC should apply to election contests for baranofficials.Fourth, since the whole remedy was invalidated, a void was created. Thus, the COMELEC had to come in and provide for a new appe

accordance with the mandate of the Constitution. As correctly pointed out by the COMELEC, Section 6, Article IX-A 14 of the 1Constitution grants and authorizes the COMELEC to promulgate its own rules of procedure. The 1993 COMELEC Rules of Procedure hprovided a uniform five (5) day period for taking an appeal

15 consistent with the expeditious resolution of election-related cases. It wo

be absurd and therefore not clearly intended, to maintain the 10-day period for barangay election contests. Hence, Section 3, Rule 22 ofCOMELEC Rules of Procedure is not in conflict with any existing law. To adopt a contrary view would defeat the laudable objectiveproviding a uniform period of appeal and defy the COMELEC's constitutional mandate to enact rules of procedure to expedite dispositioelection cases.n view of the Flores case, jurisprudence has consistently recognized that the COMELEC Rules of Procedure are controlling in elec

protests heard by a regional trial court.16

The Court en banc has held in Rodillas

COMELEC17

that "the procedure for perfecting an appeal from the decision of the Municipal Trial Court in a barangay election protest cs set forth in the COMELEC Rules of Procedure." More recently, in Calucag vs. Commission on Elections

18, the Court en banc had occa

to state that:



It follows that after the promulgation of Flores, the same arguments propounded therein by the petitioner no longer be employed. Article 8 of the Civil Code states that "(j)udicial decisions applying or interpreting laws or the constitution shall form part of the legal system of the Philippines." Said pronouncement of the Cohaving formed part of the law of the land, ignorance thereof can no longer be countenanced. Therefore, COMELEC is the proper appellate court clothed with jurisdiction to hear the appeal, which appeal must be fwithin five days after the promulgation of the MTC's decision. The erroneous filing of the appeal with the RTCnot toll the running of the prescriptive period. . . . The five-day period having expired without the aggrieved pfiling the appropriate appeal before the COMELEC, the statutory privilege of petitioner to appeal is deemwaived and the appealed decisions has become final and executory.

Significantly, Section 5(5), Article VIII of the Constitution provides in part that "[r]ules of procedure of special courts and quasi-jud

bodies shall remain effective unless disapproved by the Supreme Court."Equally devoid of merit is the contention that petitioner was fast tracked because the COMELEC did not require the parties to file tappeal briefs; that the dismissal was issued motu proprio without prior notice and hearing; and that dismissal of the appeal defeatspeople's will on procedural points. Suffice it to state that the period for filing an appeal is by no means a mere technicality of lawprocedure. It is an essential requirement without which the decision appealed from would become final and executory as if no appeal filed at all. The right of appeal is merely a statutory privilege and may be exercised only in the manner prescribed by, and in accordawith, the provisions of the law.

19 Further, by virtue of Section 9 (6), Rule 22 of the COMELEC Rules of Procedure which provides that

appeal may be dismissed upon motion of either party or at the instance of the Commission for failure to file a notice of appeal within prescribed period", the COMELEC is precisely given the discretion, in a case where the appeal is not filed on time to dismiss the actionproceeding.The COMELEC, therefore, did not commit an abuse of discretion in dismissing the appeal.WHEREFORE, the instant petition for certiorari is hereby DISMISSED for lack of merit. The assailed orders of the Commission on Electdated August 3, 1998 and October 14, 1998 are hereby AFFIRMED.

SO ORDERED.Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena and Ynares-Santiago,

concur.

Pardo, J., took no part.

EN BANC

[G.R. Nos. L-80519-21. December 17, 1987.]

JUNIE EVANGELISTA CUA, Petitioner, v. COMMISSION ON ELECTIONS and RICHARD S. PUZON, Respondents.

R E S O L U T I O N

PER CURIAM:

n SPC No. 87-454 and SPC No. 87-467, the First Division of the COMELEC rendered a 2-1 decision on August 10, 1987, favoring the hepetitioner Cua but nevertheless suspended his proclamation as winner in the lone congressional district of Quirino due to the lack ofunanimous vote required by the procedural rules in COMELEC Resolution No. 1669 dated May 2, 1984. Pursuant to said rules, privrespondent Puzon filed on August 14, 1987 a "motion for reconsideration/appeal" of the said decision with the COMELEC en banc, whon October 28, 1987, three members voted to sustain the First Division, with two dissenting and one abstaining (one member having d

earlier). On the strength of this 3-2 vote, Cua moved for his proclamation by the board of canvassers, which reconvened on Novembe1987, and granted his motion. Cua took his oath the same day, but the next day Puzon filed with the COMELEC an urgent motiosuspend Cua’s proclamation or to annul or suspend its effect if already made. On November 11, 1987, the COMELEC set the motio nhearing and three days later it issued a restraining telegram enjoining Cua from assuming the office of member of the HouseRepresentatives. The petitioner then came to this Court to enjoin the COMELEC from acting on the said motion and enforcing its restraiorder.

Section 5 of COMELEC Resolution No. 1669 reads as follows:jgc:chanrobles.com.ph

"SEC. 5. Quorum: votes required; substitution. — Two members shall constitute a quorum for the transaction of the official business of Division.



"A case being heard by it shall be decided with the unanimous concurrence of all three Commissioners and its decision shall be considerdecision of the Commission. If this required number is not obtained, as when there is a dissenting opinion, the case may be a ppealed toCommission en banc, in which case the vote of the majority thereof shall be the decision of the Commission. . . ."cralaw virtua1aw librar

The position of the petitioner is that the 2-1 decision of the First Division was a valid decision of the COMELEC itself despite the above because of Article IX-A. Section 7 of the new Constitution, providing that "each Commission shall decide by a majority vote of almembers any case or matter brought before it." He argues that this applies to the votings of the COMELEC both in division and en banc that the private respondent himself recognized this when he filed the motion for reconsideration/appeal with the COMELECbanc.chanrobles law library : red

Cua also contends that Puzon’s move, treated as a motion for reconsideration, is deemed denied for lack of the necessa ry majoritoverturn the challenged decision. As an appeal, it should be considered dismissed, also for the same reason, resulting in the decision beregarded as affirmed in accordance with Rule 56, Section 11 of the Rules of Court applied suppletorily, readingfollows:jgc:chanrobles.com.ph

"SEC. 11. Procedure if opinion is equally divided. — Where the court en banc is equally divided in opinion, or the necessary majority canbe had, the case shall be reheard, and if on re-hearing no decision is reached, the action shall be dismissed if originally commenced in court; in appealed cases, the judgment or order appealed from shall stand affirmed; and on all incidental matters, the petition or motshall be denied."cralaw virtua1aw library

For their part, the respondents insist that no decision was reached by the First Division on August 10, 1987, because the requunanimous vote was not obtained and there was therefore nothing to be affirmed on appeal by the COMELEC en banc and nothingreconsider either. Additionally, they argue that in any case no valid decision was reached by the COMELEC en banc because only three v

were cast in favor of the petitioner and these did not constitute a majority of the body.

After considering the issues and the arguments raised by the parties, the Court holds that the 2-1 decision rendered by the First Diviwas a valid decision under Article IX-A, Section 7 of the Constitution. Furthermore, the three members who voted to affirm the First Diviconstituted a majority of the five members who deliberated and voted thereon en banc and their decision is also valid under the aforecconstitutional provision. Hence, the proclamation of Cua on the basis of the two aforecited decisions was a valid act that entitles him nto assume his seat in the House of Representatives.

t is expected that the above categorical rulings will put an end to the seemingly interminable debates on this matter that have bfestering for quite some time now not only in this case but also in other cases still pending in the COMELEC. The indecisiveness of the purespondent in the appreciation and application of its own rules has seriously prejudiced a considerable number of our people who remunrepresented to date in the House of Representatives despite the fact that the congressional elections were held more than seven mo

ago.cralawnad

ACCORDINGLY, the petition is GRANTED and the public respondent is enjoined from further proceeding with the private respondemotion dated November 10, 1987. The restraining order issued by the COMELEC on November 14, 1987, enjoining petitioner fassuming office as member of the House of Representatives for the lone congressional district of Quirino is LIFTED. This ResolutioMMEDIATELY EXECUTORY.

Teehankee C . J., Fernan, Narvasa, Melencio-Herrera, Gutierrez

EN BANC

[G.R. No. 91429. July 13, 1990.]

SALVADOR M. MISON, in his capacity as commissioner of Customs, Petitioner, v. COMMISSION ON AUDIT, CHAN CHIU, and CHEUNRespondents.

Juan T. David counsel and attorney-in-fact for the owner of the M/V Hyojin Maru.

D E C I S I O N

NARVASA, J.:



n Customs Case No. 813, the Commissioner of Customs rendered a decision on August 11, 1969, declaring illegal the seizure by elementthe Philippine Navy of the M/V "Hyojin Maru" a vessel of Japanese registry, and ordered the release of the vessel and its cargo toclaimants, Chan Chiu On and Cheung I. 1 Return of the cargo as thus ordered was effected pursuant to a directive of the SecretaryFinance dated February 5, 1970. 2 Release of the vessel, however, was never effected; it sank while yet in the custody of the BureaCustoms, and requests by the Bureau to the Philippine Navy and the CADA to refloat or salvage the ship could not be complied with for of funds. 3

Chan Chiu On and Cheung I then filed a claim with the Commission of Audit for the payment of the value of the vessel. 4 Acting ther

"(b)y authority of the Acting Chairman," Mr. Rogelio B. Espiritu, Manager, Technical Service Office of the COA, denied the claim for reasons set forth in his registered letter to the claimant’s lawyer dated November 3, 1977 — captioned "Decision No. 77-142." 5 Anotetter, dated December 9, 1977, this time signed by Acting COA Chairman Francisco S. Tantuico, was also sent to claimants’ counsel, A

Juan David, enclosing "a copy of Decision No. 77-142 of this Commission, contained in a letter dated November 3, 1977, which is sexplanatory." 6

Atty. David moved for reconsideration by letter dated February 6, 1978. Acting COA Chairman Tantuico denied the motion, in his own l edated April 17, 1978 on the ground that it had been filed beyond the reglementary period of 30 days from the date of receipt of a copthe subject Decision which, in consequence, had "already become final and executory." 7 In a letter dated May 10, 1978, Mr. David repthat said Decision No. 77-142 — rendered only by the Manager, Technical Service Office of the COA, and "not (by) the Acting Chairmmuch less xx the Commission on Audit" — was void because the matter could validly be acted upon only by "the Commission on Audit dconstituted, by the appointment and qualification of its Chairman and two Commissioners," "as specifically provided by Section 2, ArtXII-D of the (1973) Constitution." 8 Commissioner Tantuico wrote back on August 24, 1978 informing Mr. David that "this Commission fi

no cogent reason that would justify a reversal of its stand on the matter." 9

Again Atty. David moved for reconsideration, by letter dated April 5, 1979, reiterating the view that Acting Chairman Tantuico lacconstitutional authority to act on the claim on its merits, and requesting that "the same be submitted for resolution by the CommissionAudit, after the appointment of the two (2) commissioners thereof, as required by Section 2, Article XII-D of the Constitution." 10 In anocommunication dated April 20, 1981, Mr. David reiterated his request that his application for reconsideration be acted on, considering "a Commissioner has (already) been appointed as member of said Commission." It does not appear that either letter was acted on. 11

On November 17, 1986, the Commission on Audit having been fully constituted with the appointment of the Chairman and twomembers, Mr. David wrote still another letter to it, 12 drawing attention once again to his clients’ claim for payment of the "nomdepreciated value . . . (of their vessel) in the sum of US$50,000.00, plus the amount corresponding to legal interest." An acceptalternative based on "established practice," according to David, would be the conveyance to his clients by the Bureau of Custom

"forfeited merchandise, the value of which shall correspond to the nominal depreciated value of said vessel, plus legal interest . . ."cravirtua1aw library

n a 4th Indorsement dated June 22, 1987 addressed "to the Auditor, Bureau of Customs," Chairman Eufemio C. Domingo, acting "FOR COMMISSION," reconsidered Decision No. 77-142 of Acting Commissioner of Audit Tantuico, supra. He declared that the vessel sank wn illegal custody of the Bureau of Customs, which "should have pre-eminently taken adequate measures to preserve" it but did not; he

he declared that "this Commission will interpose no objection" to the instant claim, subject to the usual auditing and accounrequirements." 13

Petitioner Mison sought clarification of "the legal implication of the 4th Indorsement dated June 22, 1987," in two (2) letters daNovember 8, 1988 and November 16, 1988. 14 The response was a letter dated May 19, 1989, entitled "COA Decision No. 992," signed"the full complement of three (3) members of the Commission on Audit." 15 Said COA Decision No. 992 pointed out that the eardecision, No. 77-142, was "open to question and cannot be recognized by the present Commission" because signed merely by the t

Manager of the Technical Service Office," who evidently "was not acting for the Commission but only for the then Acting Chairmantherefore held that the 4th Indorsement dated June 22, 1987 should be "deemed for all legal intents and purposes as the final decisionthe matter . . ." This letter — Decision No. 992 — was received by the Bureau of Customs on June 22, 1989. 16

The petitioner filed a motion for reconsideration on August 30, 1989.17 The motion was denied by letter dated October 20, 19denominated "COA Decision No. 1053," also signed by the Chairman and the two (2) Members of the Commission, notice of which wreceived by the petitioner on December 4, 1989. 18

Petitioner seasonably filed with this Court a petition for certiorari to nullify said COA Decisions No. 992 and 1053, pursuant to SectioArticle IX of the 1987 Constitution. 19

1. The first point that the petitioner would make is that COA Decision No. 77-142, although signed only by the Manager, Technical Ser

Office of the COA, was ratified or made valid because it "was adopted in toto as a decision of the COA in the letters dated Decembe



1977, April 17, 1978, and August 24, 1978 of then COA Chairman Francisco T. Tantuico, Jr. to Atty. Juan T. David." The point cannotconceded. chanrobles law library

n the first place the "Espiritu decision" was void ab initio. As manager of the COA Technical Service Office, Mr. Espiritu obviously hadpower whatever to render and promulgate a decision of or for the Commission. Indeed, even the Chairman, alone, had not that powerclearly set out in the Constitution then in force, the power was lodged in the Commission on Audit, "composed of a Chairman and tCommissioners." 20 It was the Commission, as a collegial body, which then as now, had the jurisdiction to "(d)ecide any case broubefore it within sixty days from the date of its submission for resolution," subject to review by the Supreme Court on certiorari. 21

Hence, the adoption or ratification of the Espiritu decision by the Acting COA Chairman was inconsequential. Ratification cannot validat

act void ab initio because done absolutely without authority. The act has to be done anew by the person or entity duly endowed wauthority to do so.

Moreover, even conceding the contrary, no proper ratification or validation could have been effected by the Acting Chairman since he not the Commission, and he himself had no power to decide any case brought before the Commission, that power, to repeat, being lodonly in the Commission itself, as a collegial body. chanrobles virtual lawlibrary

Parenthetically, the proposition advocated in this connection that Chairman Domingo may no longer question the validity of the EspDecision" (No. 77-142) because in assailing it, he had referred to it as "a decision of the Commission on Audit and not merely of its thActing Chairman," is so patently unmeritorious as to deserve scant consideration.

2. The petitioner argues that to sanction the foregoing principle would result in the invalidation of "hundreds of decisions and orders sigby or signed by authority of the Acting Chairman Tantuico (alone)," considering that there was an appreciable interval during which onl

Acting Chairman had been designated and no other Commissioner had been appointed or was otherwise acting as such. It suffices to ras this Court has already had occasion to in an analogous case, that the principle should logically apply only to those particular instanwhere there was a timely and specific challenge to the authority of the Acting COA Chairman to exercise the power of adjudicatiodecision; it should not affect all other cases where the parties expressly or by implication accepted the adjudicative authority of Chairman. 22

3. The petitioner next contends that the objection — that the "Espiritu Decision" was "technically invalid due to . . . lack of collegialitywas waived by failure of Atty. David to raise it in his motion for reconsideration, in which motion he confined his arguments to the meritthe decision, and additionally, by his failure, after denial of his motion for reconsideration, to appeal to the Supreme Court, with the rethat the judgment became final and executory as of October 7, 1978.

The contention is also without merit. The record shows — although the petition does not allege 23 — that in a letter dated May 10, 19

Mr. David did dispute Decision No. 77-142 because rendered only by the Manager, Technical Service Office of the COA, and "not (by) Acting Chairman, much less xx the Commission on Audit" "duly constituted, by the appointment and qualification of its Chairman and Commissioners," "as specifically provided by Section 2, Article XII-D of the (1973) Constitution." He reiterated the challenge to ActChairman Tantuico’s constitutional authority to act on the claim on its merits, in his letter dated Apri l 5, 1979, and requested that "same be submitted for resolution by the Commission on Audit, after the appointment of the two (2) commissioners thereof, as requiredSection 2, Article XII-D of the Constitution." 24 And in another communication dated April 20, 1981, Mr. David once more requested thaapplication for reconsideration be acted on collegially, considering that "a Commissioner had (already) been appointed as members of Commission."cralaw virtua1aw library

Furthermore, it must be made clear that the Espiritu Decision was not merely "technically invalid," as the petitioner describes it. It substantively void ab initio, because rendered without jurisdiction. It had an essential inherent defect that could not be cured or waived

5. The petitioner also maintains that if the Espiritu Decision, or Decision No. 77-142 be held void because adopted and signed only by Ac

COA Chairman Tantuico, then the decision embodied in the 4th Indorsement dated June 22, 1987, signed only by incumbent COA ChairDomingo, should also be pronounced void. There is no parity in situation. In the first place, when Decision No. 77-142 was rendered, thwas no commissioner in the Commission on Audit except the Acting Chairman himself On the other hand, when the 4th Indorsement daJune 22, 1987 was rendered, there were two (2) members of the Commission: the Chairman, and Commissioner Fernandez, clearnumber sufficient to satisfy the constitutional requirement for collegial action. Moreover, it is made clear in said 4th Indorsement that decision therein embodied was that of the Commission, composed of Chairman Domingo and Commissioner Fernandez. The phtherefore, by which Chairman Domingo describes the capacity in which he acted, i.e., "FOR THE COMMISSION," must be taken as entiaccurate, not only because of the familiar presumption of regularity of performance of official functions, but because the records do sCommissioner Fernandez’ full concurrence with the decision in said indorsement. Besides, said 4th Indorsement was ratified and reaffirmby "COA Decision No. 992" of May 19, 1989 signed by "the full complement of three (3) members of the Commission on Audit," 25 toeffect inter alia that the 4th Indorsement dated June 22, 1987, (of Chairman Domingo and Commissioner Fernandez) should be "deemfor all legal intents and purposes as the final decision on the matter . . ."cralaw virtua1aw library



t thus appears that not only does the petition fail to show any grave abuse of discretion on the part of the respondent Commission in rendition of its decision embodied in the 4th Indorsement dated June 22, 1987 and its Decision No. 992 of May 19, 1989, but that thjudgments are in fact in accord with the relevant facts and applicable legal principles. chanrobles virtual lawlibrary

WHEREFORE, the petition is DISMISSED for lack of merit, without pronouncement as to costs.

SO ORDERED.G.R. No. 113219 August 14, 1995ANICETO G. MATEO, MAXIMO SAN DIEGO, QUIRINO MATEO, DANIEL FRANCISCO, and LEONILA KUIZON, petitionvs.

HONORABLE COURT OF APPEALS, HON. ARTURO A. MARAVE, and EDGAR STA. MARIA, respondents.

PUNO, J.: Upon complaint of some Morong Water District (MOWAD) employees, petitioners, all Board Members of MOWAD, conductednvestigation on private respondent Edgar Sta. Maria, then General Manager.

1 On December 13, 1992, private respondent was pla

under preventive suspension and Maximo San Diego was designated in his place as Acting General Manager. He was later dismissedJanuary 7, 1993.On January 18, 1993, private respondent filed a Special Civil Action for Quo Warranto and Mandamus with Preliminary Injunction

2 be

the Regional Trial Court of Rizal, Branch 78, challenging his dismissal by petitioners. The petition embodied three (3) causes of actionreads:

xxx xxx xxxFIRST CAUSE OF ACTIONxxx xxx xxx

II-2 Petitioner is the General Manager of the MOWAD since August 1984 with concomitant security of tenure in officecould not be removed either temporarily or permanently, except for cause and only after compliance with the elemenrules of due process;II-3 However, on December 14, 1992, contrary to the tenets of justice and fairness, as well as for want of procedural process, the respondents (petitioners) and members of the Board of Directors of the MOWAD have arbitrawhimsically, and unilaterally stopped and prohibited the petitioner from exercising his rights and performing his dutieGeneral Manager of the MOWAD and, in his place, have designated the respondent (petitioner) Maximo San DiegoActing General Manager . . .II-4 On December 15, 1992, while petitioner was out of office on official travel, . . . thru stealth and strategy, respondents have conspired and helped one another in removing the petitioner from the Office of the General Manaof the MOWAD by forcibly destroying its door and locked it with a replaced door-knob and all attempts on his part to access and entry proved futile; . . .

SECOND CAUSE OF ACTIONxxx xxx xxxIII-2 On January 7, 1993, . . . in confabulation with his co-respondents and members of the Board of Directors ofMOWAD, the respondent Aniceto G. Mateo slapped the petitioner with an Order terminating his services as GenManger . . .III-5 Petitioner has a clear right to the Office of General Manager of the MOWAD which is being usurped or unlawfheld by respondent Maximo San Diego in conspiracy with his co-respondents; . . .THIRD CAUSE OF ACTIONxxx xxx xxxIV-1-a Petitioner is entitled to the relief mandated, and the whole or part of such relief consists in restraining commission, or continuance of the acts complained of more particularly the continuous acts of repondents in stopand prohibiting him from exercising his rights and performing his duties as General Manager of the MOWAD and frstopping and prohibiting him to gain access and entry to office.

3

Petitioners, in turn, moved to dismiss the case on two (2) grounds: (1) the court had no jurisdiction over disciplinary actions of governmemployees which is vested exclusively in the Civil Service Commission; and (2) quo warranto was not the proper remedy.

4 Respond

Judge Arturo Marave denied the Motion to Dismiss on April 26, 1993, and the Motion for Reconsideration on June 9, 1993. 5

Petitioners then elevated the matter to this Court through a petition for certiorari under Rule 65 which was referred to respondent CouAppeals for adjudication. In its Decision, dated November 24, 1993, respondent Court of Appeals dismissed the petition for lack of mand in its Resolution, dated January 11, 1994, denied the Motion for Reconsideration.

6

The main issue in this petition for review is whether or not the Regional Trial Court of Rizal has jurisdiction over Sp. Civil Case No. 01nvolving dismissal of an employee of quasi-public corporation.

We hold that it has no jurisdiction.There is no question that MOWAD is a quasi -public corporation created pursuant to Presidential Decree (P.D.) No. 198, known as provincial Water Utilities Act of 1973, as amended.

7 In Davao City Water District v . Civil Service Commissions 8 the Court en banc ruled

employees of government-owned or controlled corporations with original charter fall under the jurisdiction of the Civil Service Commiss

viz:



xxx xxx xxxAs early as Baguio Water District v . Trajano et, al . , We already ruled that a water district is a corporation created pursuto a spelaw — P.D. No. 198, as amended, and as such its officers and employees are covered by the Civil Service Law.In another case (Hagonoy Water District v. NLRC), We ruled once again that local water districts are quasi-pucorporations whose employees belong to the Civil Service. (emphasis omitted)

ndeed, the established rule is that the hiring and firing of employees of goverment-own and controlled corporations are governed by provisions of the Civil Service Law and Rules and Regulations.

9

Presidential Decee No. 807, Executive Order No. 292,10

and Rule II section 1 of Memorandum Circular No. 44 series of 1990 of the CService Commission spell out the initial remedy of private respondent against illegal dismissal. They categorically provide that the pa

aggrieved by a decision, ruling, order, or action of an agency of the government involving termination of services may appeal to Commission within fifteen (15) days. Thereafter, private respondent could go on certiorari to this Court under Rule 65 of the Rules of Cof he still feels aggrieved by the ruling of the Civil Service Commission. So We held in Mancita v . Barcinas,

11 viz:

xxx xxx xxx[N]o appeal lies from the decision of the Service Commission, * and that parties aggrieved thereby may proceed to Court alone on certiorari under Rule 65 of the Rules of Court, within thirty (30) days from receipt of a copy therpursuant to section 7, Article IX of the 1987 Constitution. We quote:

Sec. 7. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of eCommission may be brought to the Supreme Court on certiorari by the party within thirty days freceipt of a copy thereof.

The Civil Service Commission under the Constitution, is the single arbiter of all contests relating to the Civil service andsuch, its judgments are unappealable and subject only to this Court's certiorari judgment.

Mancita, however, no longer governs for under the present rule, Revised Circular No. 1-91 as amended by Revised Administrative Circ

No. 1-95 which took effect on June 1, 1995, final resolutions of the Civil Service Commission shall be appealable to the Court of Appealany event, whether under the old rule or present rule, Regional Trial Courts have no jurisdiction to entertain cases involving dismissaofficers and employees covered by the Civil Service Law.N VIEW HEREOF, the petition is GRANTED and the decision of respondent Court of Appeals dated November 24, 1993 and its Resolu

dated January 1, 1994 in CA G.R. SP No. 31530 are ANNULLED and SET ASIDE. No costs.SO ORDERED.EN BANC

[G.R. No. 143398. October 25, 2000]

RUPERTO A. AMBIL, JR., petitioner, vs. THE COMMISSION ON ELECTIONS (FIRST DIVISION, FORMERLY SECOND DIVISION) and JOSRAMIREZ, respondents.

D E C I S I O N

PARDO, J.:

The case before the Court is a special civil action for certiorari and prohibition with preliminary injunction or temporary restraining orseeking to nullify the order dated June 15, 2000 of the Commission on Elections (Comelec), First Division,[1] giving notice to the partiethe promulgation of the resolution on the case entitled Jose T. Ramirez, Protestee, versus Ruperto A. Ambil, Jr., Election Protest Case 98-29, on June 20, 2000, at 2:00 in the afternoon and to prohibit the respondent Commission on Election from promulgating the so ca“Guiani ponencia.”*2+

The facts are as follows:

Petitioner Ruperto A. Ambil, Jr. and respondent Jose T. Ramirez were candidates for the position of Governor, Eastern Samar, during May 11, 1998 elections.[3] On May 16, 1998, the Provincial Board of Canvassers proclaimed Ruperto A. Ambil, Jr. as the duly elecGovernor, Eastern Samar, having obtained 46,547 votes, the highest number of votes in the election returns.

On June 4, 1998, respondent Ramirez who obtained 45,934 votes, the second highest number of votes, filed with the Comelec, an electprotest[4] challenging the results in a total of 201 precincts.[5] The case was assigned to the First Division (formerly Second), Commison Elections.[6]

On January 27, 2000, Commissioner Japal M. Guiani prepared and signed a proposed resolution in the case. To such proposed ponenCommissioner Julio F. Desamito dissented. Commissioner Luzviminda G. Tancangco at first did not indicate her vote but said that she wo“wish to see both positions, if any, to make her (my) final decision.”*7+



n the meantime, on February 15, 2000, Commissioner Guiani retired from the service. On March 3, 2000, the President of the Philippiappointed Commissioner Rufino S. Javier to the seat vacated by Commissioner Guiani. Commissioner Javier assumed office on April 4, 20

On or about February 24, 2000, petitioner Ambil and respondent Ramirez received a purported resolution promulgated on February2000, signed by Commissioner Guiani and Tancangco, with Commissioner Desamito dissenting. The result was in favor of respondRamirez who was declared winner by a margin of 1,176 votes.[8] On February 28, 2000, the Comelec, First Division, declared that thirteen-page resolution “is a useless scrap of paper which should be ignored by the parties in this case there being no promulgation ofResolution in the instant case.” *9+

On March 31, 2000, the Comelec, First Division, issued an order setting the promulgation of the resolution in the case (EPC Case No. 98-

on April 6, 2000, at 2:00 in the afternoon.[10] However, on April 6, 2000, petitioner Ambil filed a motion to cancel promulgation challenthe validity of the purported Guiani resolution. The Comelec, First Division, acting on the motion, on the same date, postponed promulgation until this matter is resolved.[11]

On June 14, 2000, two members of the First Division, namely, Commissioners Luzviminda G. Tancangco and Rufino S. Javier, sent a jmemorandum to Commissioner Julio F. Desamito, presiding Commissioner, stating:

“Pursuant to your recommendation in your April 18, 2000 Memorandum to the Commission En Banc that this case be submitted fo

reconsultation by the members of the First Division, it is our position that we promulgate as soon as possible the Guiani Resolution of case. This is notwithstanding the Jamil vs. Comelec (283 SCRA 349), Solidbank vs. IAC (G. R. No. 73777) and other doctrinal cases on ssue. After all, this Commission stood pat on its policy that what is controlling is the date the ponente signed the questioned Resolutio

what we did in promulgating the case of Dumayas vs. Bernal (SPC 98-137).

“In view of the foregoing, we recommend that we proceed with t he promulgation of the subject resolution and let the aggrieved pchallenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the SupreCourt.[12]

On June 15, 2000, the Comelec, First Division, through Commissioner Julio F. Desamito, issued an order setting the promulgation of resolution in the case on June 20, 2000, at 2:00 o’clock in the afternoon.*13+

Without waiting for the promulgation of the resolution, on June 19, 2000, petitioner interposed the instant petition.[14]

Petitioner Ambil seeks to annul the order dated June 15, 2000 setting the promulgation of the resolution of the case (EPC Case No. 98on June 20, 2000 at 2:00 in the afternoon, and prohibiting the Comelec, First Division, from promulgating the purported Guiani resolutand directing the Comelec, First Division, to deliberate anew on the case and to promulgate the resolution reached in the case after s

deliberation.[15]

On June 20, 2000, we issued a temporary restraining order enjoining respondent Comelec from implementing the June 15, 2000 orderthe promulgation of the resolution set on June 20, 2000 at 2:00 in the afternoon. At the same time, the Court directed the respondentcomment on the petition within ten (10) days from notice. [16]

On July 10, 2000, respondent Ramirez filed his comment.[17] Respondent Ramirez admitted that the proposed resolution of CommissioGuiani was no longer valid after his retirement on February 15, 2000.[18] He submitted that Comelec, First Division, its membership constituting a majority, must elevate the protest case to the Comelec en banc until resolved with finality.[19]

n his comment filed on August 29, 2000, the Solicitor General interposed no objection to the petition.[20]

At issue in this petition is whether Comelec, First Division, in scheduling the promulgation of the resolution in the case (EPC Case No. 98

acted without jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.

We find the petition without merit.

To begin with, the power of the Supreme Court to review decisions of the Comelec is prescribed in the Constitution, as follows:

“Section 7. Each commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days fthe date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing ofast pleading, brief, or memorandum required by the rules of the commission or by the commission itself. Unless otherwise provided by

constitution or by law, any decision, order, or ruling of each commission may be brought to the Supreme Court on certiorari by aggrieved party within thirty days from receipt of a copy thereof.”*21+ *emphasis supplied+



“We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicaor quasi- judicial powers.”*22+ This decision must be a final decision or resolution of the Comelec en banc,*23+ not of a division,*24+ certanot an interlocutory order of a division.[25] The Supreme Court has no power to review via certiorari, an interlocutory order or even a fresolution of a Division of the Commission on Elections.[26]

The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the Supreme Court is by the special c ivil actiocertiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil Procedureamended.[27]

Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no appeal, or any plain, speedy and adequate rem

n the ordinary course of law. A motion for reconsideration is a plain and adequate remedy provided by law.[28] Failure to abide by procedural requirement constitutes a ground for dismissal of the petition.[29]

n like manner, a decision, order or resolution of a division of the Comelec must be reviewed by the Comelec en banc via a motion reconsideration before the final en banc decision may be brought to the Supreme Court on certiorari. The pre-requisite filing of a mofor reconsideration is mandatory.[30] Article IX-C, Section 3, 1987 Constitution provides as follows:

“Section 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in o rdeexpedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decideddivision, provided that motions for reconsideration of decisions shall be decided by the Commission en banc. [emphasis supplied]

Similarly, the Rules of Procedure of the Comelec provide that a decision of a division may be raised to the en banc via a motionreconsideration.[31]

The case at bar is an election protest involving the position of Governor, Eastern Samar.[32] It is within the original jurisdiction of Commission on Elections in division.*33+ Admittedly, petitioner did not ask for a reconsideration of the division’s resolution or decision.[34] In fact, there was really no resolution or decision to speak of [35] because there was yet no promulgation, which was scheduled on June 20, 2000 at 2:00 o’clock in the afternoon. Petitioner went directly to the Supreme Court from an order of “promulgaof the Resolution of this case” by the First Division of the Comelec.[36]

Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the Comelec in division can not dispense wthe filing of a motion for reconsideration of a decision, resolution or final order of the Division of the Commission on Elections becausecase would not reach the Comelec en banc without such motion for reconsideration having been filed and resolved by the Division.

The instant case does not fall under any of the recognized exceptions to the rule in certiorari cases dispensing with a motion

reconsideration prior to the filing of a petition.[37] In truth, the exceptions do not apply to election cases where a motion reconsideration is mandatory by Constitutional fiat to elevate the case to the Comelec en banc, whose final decision is what is reviewavia certiorari before the Supreme Court.[38]

We are aware of the ruling in Kho v. Commission on Elections,*39+ that “in a situation such as this where the Commission on E lectiondivision committed grave abuse of discretion or acted without or in excess of jurisdiction in issuing interlocutory orders relative to an acpending before it and the controversy did not fall under any of the instances mentioned in Section 2, Rule 3 of the COMELEC RuleProcedure, the remedy of the aggrieved party is not to refer the controversy to the Commission en banc as this is not permissible undepresent rules but to elevate it to this Court via a petition for certiorari under Rule 65 of the Rules of Court.” This is the case relied upon

the dissenting justice to support the proposition that resort to the Supreme Court from a resolution of a Comelec Division is allowed.Unfortunately, the Kho case has no application to the case at bar. The issue therein is, may the Commission on Elections in division admianswer with counter-protest after the period to file the same has expired?[41] The Comelec First Division admitted the answer wcounter-protest of the respondent. The Supreme Court declared such order void for having been issued with grave abuse of discret

tantamount to lack of jurisdiction.[42] However, an important moiety in the Kho case was not mentioned in the dissent. It is that Comelec, First Division, denied the prayer of petitioner for the elevation of the case to en banc because the orders of admission were mnterlocutory orders.[43] Hence, the aggrieved party had no choice but to seek recourse in the Supreme Court. Such important fact is

present in the case at bar.

We must emphasize that what is questioned here is the order dated June 15, 2000, which is a mere notice of the promulgation of resolution in EPC Case No. 98-29. We quote the order in question in full, to wit:

“Pursuant to Section 5 of Rule 18 of the COMELEC RULES OF PROCEDURE, and the Joint Memorandum of Commissioners LuzvimindTancangco and Rufino S. Javier to the Presiding Commissioner of the First Division dated 14 June 2000 paragraph 5 of which states:

‘In view of the foregoing, we recommend that we proceed with the promulgation of the subject resolution and let the aggrieved p

challenge it through a Motion for Reconsideration before the Commission en banc or through a certiorari case before the Supreme Cour



the promulgation of the Resolution in this case is hereby set on Tuesday, June 20, 2000 at 2:00 o’clock in the afternoon at the Come

Session Hall, Intramuros, Manila.

No further motion for postponement of the promulgation shall be entertained.

The Clerk of the Commission is directed to give the parties, through their Attorneys, notice of this Order through telegram and by registemail or personal delivery.

“SO ORDERED.

“Given this 15th day of June, 2000 in the City of Manila, Philippines.

FOR THE DIVISION:

[Sgd.] JULIO F. DESAMITO

Presiding Commissioner”*44+

There is nothing irregular about the order of promulgation of the resolution in the case, except in the mind of suspicious parties. Perhwhat was wrong in the order was the reference to the memorandum of the two commissioners that was not necessary and wasuperfluity, or excessus in linguae. All the members of the Division were incumbent Commissioners of the Commission on Electi(COMELEC) and had authority to decide the case in the Division. What appears t o be patently null and void is the so-called Guiani resolu

f it is the one to be promulgated. We cannot assume that the Comelec will promulgate a void resolution and violate the Constitution the law. We must assume that the members of the Commission in Division or en banc are sworn to uphold and will obey the Constitutio

Consequently, the Guiani resolution is not at issue in the case at bar. No one knows the contents of the sealed envelope containing resolution to be promulgated on June 20, 2000, simply because it has not been promulgated!

t may be true that the parties received a copy of what purports to be the Guiani resolution,[45] declaring respondent Jose T. Ramirezvictor in the case. Such Guiani resolution is admitted by the parties and considered by the Commission on Elections as void. The SolicGeneral submitted an advice that the same resolution is deemed vacated by the retirement of Commissioner Guiani on February2000.[46] It can not be promulgated anymore for all legal intents and purposes.

We rule that the so-called Guiani resolution is void for the following reasons:

First: A final decision or resolution becomes binding only after it is promulgated and not before. Accordingly, one who is no longmember of the Commission at the time the final decision or resolution is promulgated cannot validly take part in that resolutiondecision.[47] Much more could he be the ponente of the resolution or decision. The resolution or decision of the Division must be signea majority of its members and duly promulgated.

Commissioner Guiani might have signed a draft ponencia prior to his retirement from office, but when he vacated his office withoutfinal decision or resolution having been promulgated, his vote was automatically invalidated.[48] Before that resolution or decision issigned and promulgated, there is no valid resolution or decision to speak of.[49]

Second: Atty. Zacarias C. Zaragoza, Jr., Clerk of the First Division, Commission on Elections, denied the release or promulgation of the Guresolution. He disowned the initials on the face of the first page of the resolution showing its promulgation on February 14, 2000, and that it was a forgery. There is no record in the Electoral Contests and Adjudication Department (ECAD) of the Commission on E lection th

“resolution on the main merits of the case was promulgated.”*50+

Third: By an order dated February 28, 2000, the Comelec, First Division, disclaimed the “alleged thirteen (13) page resolution” for bein

useless scrap of paper which should be ignored by the parties” there being no promulgation of the resolution in the case.*51+

Fourth: It is unlikely that Commissioner Tancangco affixed her signature on the Guiani resolution. On the date that it was purportpromulgated, which was February 14, 2000, the Division issued an order where Commissioner Tancangco expressed her reservations stated that she wished to see both positions, if any, before she made her final decision.[52]

A final decision or resolution of the Comelec, in Division or en banc is promulgated on a date previously fixed, of which notice shalserved in advance upon the parties or their attorneys personally or by registered mail or by telegram.[53]



t is jurisprudentially recognized that at any time before promulgation of a decision or resolution, the ponente may change his mind.Moreover, in this case, before a final decision or resolution could be promulgated, the ponente retired and a new commissioner appoinAnd the incoming commissioner has decided to take part in the resolution of the case. It is presumed that he had taken the position ofpredecessor because he co-signed the request for the promulgation of the Guiani resolution.[55]

f petitioner were afraid that what would be promulgated by the Division was the Guiani resolution, a copy of which he received by mwhich, as heretofore stated, was not promulgated and the signature thereon of the clerk of court was a forgery, petitioner could sreconsideration of such patently void resolution and thereby the case would be elevated to the Commission en banc.[56]

Considering the factual circumstances, we speculated ex mero motu that the Comelec would promulgate a void resolution.

“The sea of suspicion has no shore, and the court that embarks upon it is without rudder or compass.”*57+ We must not speculate that

Comelec would still promulgate a void resolution despite knowledge that it is invalid or void ab initio.

Consequently, the filing of the instant petition before this Court was premature. Petitioner failed to exhaust adequate administraremedies available before the COMELEC.

n a long line of cases, this Court has held consistently that “before a party is allowed to seek the intervention of the cou rt, it is a condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within administrative machinery can still be resorted to by giving the administrative officer concerned every opportunity to decide on a mathat comes within his jurisdiction, then such remedy should be exhausted first before the court’s judicial power can be sought.

premature invocation of court’s intervention is fatal to one’s cause of action.”*58+

“This is the rule on exhaustion of administrative remedies. A motion for reconsideration then is a pre-requisite to the viability of a specivil action for certiorari, unless the party who avails of the latter can convincingly show that his case falls under any of the followexceptions to the rule: (1) when the question is purely legal, (2) where judicial intervention is urgent, (3) where its application may cagreat and irreparable damage, (4) where the controverted acts violate due process, (5) failure of a high government official from whrelief is sought to act on the matter, and seeks when the issue for non-exhaustion of administrative remedies has been rendemoot.”*59+

“This doctrine of exhaustion of administrative remedies was not without its practical and legal reasons, for one thing , availmenadministrative remedy entails lesser expenses and provides for a speedier disposition of controversies. It is no less true to state that courts of justice for reasons of comity and convenience will shy away from a dispute until the system of administrative redress has bcompleted and complied with so as to give the administrative agency concerned every opportunity to correct its error and to dispose ofcase. However, we are not amiss to reiterate that the principal of exhaustion of administrative remedies as tested by a battery of case

not an ironclad rule. This doctrine is a relative one and its flexibility is called upon by the peculiarity and uniqueness of the factual circumstantial settings of a case. Hence, it is disregarded (1) when there is a violation of due process, (2) when the issue involved is pureegal question, (3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction, (4) when there is estop

on the part of the administrative agency concerned, (5) when there is irreparable injury, (6) when the respondent is a department secrewhose acts as an alter ego of the president bears the implied and assumed approval of the latter, (7) when to require exhaustionadministrative remedies would be unreasonable, (8) when it would amount to a nullification of a claim, (9) when the subject matter private land in land case proceedings, (10) when the rule does not provide a plain, speedy and adequate remedy, and (11) when therecircumstances indicating the urgency of judicial intervention.”*60+ The administrative authorities must be given an opportunity to act correct the errors committed in the administrative forum.[61] Only after administrative remedies are exhausted may judicial recourseallowed.[62]

This case does not fall under any of the exceptions and indeed, as heretofore stated, the exceptions do not apply to an election case withe jurisdiction of the Comelec in Division.

Hence, the petition at bar must be dismissed for prematurity. “Failure to exhaust administrative remedies is fatal to a party's caus

action and a dismissal based on that ground is tantamount to a dismissal based on lack of cause of action.”*63+

WHEREFORE, the Court hereby DISMISSES the petition for prematurity.

The Court orders the Commission on Elections, First Division, to resolve with all deliberate dispatch Election Protest Case No. 98-29 andpromulgate its resolution thereon adopted by majority vote within thirty (30) days from notice hereof.

The temporary restraining order issued on June 20, 2000, is hereby lifted and dissolved, effective immediately.

No costs.



SO ORDERED.G.R. No. 141952-53 April 20, 2001RODOLFO DUMAYAS, JR., petitiovs.COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF THE MUNICIPALITY OF CARLES, PROVINCE OF ILOILO and FEBERNAL, JR., respondents.QUISUMBING, J.:n this special civil action, petitioner Rodolfo Dumayas, Jr., seeks to nullify the Resolution promulgated March 2, 2000 by the Commission

Elections (COMELEC) en banc, reversing that of the Second Division dated August 4, 1998, which annulled the petitioner’s proclamatio

Municipal Mayor of Carles, Iloilo.

The antecedent facts of the case, as found by the COMELEC en banc, are as follows:Petitioner Dumayas, Jr. and respondent Bernal, Jr. were rival candidates for the position of mayor in Carles, Illast 11 May 1998 synchronized elections.1âwphi1.nêt During the canvassing on 13 May 1998, election returns for precinct nos. 61A, 62A, and 63A/64A all of BaranPantalan was protested for inclusion in the canvass before the Municipal Board of Canvassers (MBC for brevby petitioner-appellant Dumayas Jr. The grounds relied upon for their exclusion are all the same- tha"violation of Secs. 234, 235, 236 of the Omnibus Election Code and other election laws; acts of terrori

intimidation, coercion, and similar acts prohibited by law." Appellant Dumayas, Jr. submitted his evidence toBoard of Canvassers on 14 May 1998 which consist of (a) the joint affidavits executed by LAMMP watchersprecinct 61A: Teresita Oblido, Reyland de la Rosa, and Armando Flores [signed by Oblido and Flores only];affidavit of petitioner’s supporter Virgilisa Capao; (c) joint affidavit of precinct 63A – watcher Nona Dichosa precinct 62A – watcher Daniel Carmona; (d) blotter report dated 12 May 1998 of Carles PNP, Iloilo; andcorroborating affidavit of LAMMP supporter Honorato Gallardo.

All the affidavits submitted by petitioner contain similar attestations such as: certain local barangay (sic) officwere inside the polling place during the casting and counting of votes, or acted as watcher of respondent; SGilbert Sorongon who was in shorts and t-shirt armed with an armalite roamed around and inside the polplaces; a CVO in uniform was roaming precinct 63A; the presence of the public officials posed threat intimidation driving most of the watchers of other political parties away; the BEIs were so intimidated coerced that no election return was prepared simultaneous with the tallying; the election returns were prepaunder duress; the voters were coerced to vote for certain favored candidates especially herein respondepetitioner’s watchers were made to sign or affix their thumbmarks on the already prepared election returns

precinct 63A/64A, the voting ended at almost 9:00 P.M. without the BEI members writing the names of svoters.Petitioner also submitted a certification issued by PO3 Tito Billones, Desk Officer of PNP Carles representingblotter report (extracted from the police log book) which states that on 12 May 1998, Virgilisa Capao reporte

the Police Station of Carles, Iloilo that PO3 Sorongon and Brgy. Capt. Mahilum entered Precinct 63A with (sic)company of other CVO and Brgy. Kagawad during election. And that these people gravely intimidated the voby telling them the names of the candidates they should vote for. It also states that PO3 Sorongon was not inprescribed uniform when seen with hand grenades hanging on his neck and carrying an armalite roaming inand outside the polling place.On the other hand, respondent Bernal, Jr. in vehemently denying the allegations of petitioner, submitted jaffidavits of the members of the different Boards of Election Inspectors for precinct nos. 61A, 62A and 63A/64x x xAll the supplemental affidavits of the different BEIs categorically declared that the elections in their respecprecincts "starting from the start of the voting to its closing, to the counting of votes and to the preparation a

submission of election returns" were peaceful, clean, orderly and no acts of terrorism, intimidation, coercion similar acts prohibited by law was (sic) exerted on anybody including the voters and members of the BEIs. Tall attested that the incidents alleged by petitioner’s watchers did not happen. The alleged terrorism, coerc

or violation of election laws like the opening of ballots and reading the votes allegedly done by certain puofficials like SPO3 Sorongon, Nody Mahilum, Anonia Barrios, Telesforo Gallardo and others are not true, the tbeing that these people were only inside the polling place to exercise their right of suffrage. They vehemently denied that the election returns were not simultaneously prepared with the tallying and countinvotes. They stressed that as public school teachers, they cannot risk their future and career and will not allowtolerate anybody to make a mockery of the electoral process to (sic) which they were duly sworn to uphold.Nody Mahilum and PO3 Gilbert Sorongon also executed a joint affidavit denying the accusations of Dumayasand his watchers stating therein that they only entered their respective precinct-polling place in order to exertheir right of suffrage and that the election in the three precincts of Barangay Pantalan was orderly, peaceand honest which (sic) truly reflects the will of the electorate.x x x

1

n the afternoon of May 14, 1998, the Municipal Board of Canvassers denied petitioner’s objection to the inclusion of the contested retu

and proceeded with the canvass. The results of the voting were as follows:



DUMAYAS BERNAL

CONTESTED PRECINCTS

Prec. 61A 44 117

Prec. 62A 43 114

Prec. 63A/64A (clustered) 54 159

Uncontested prec[incts] total 7,636 7,514

Over all total 7,777 7,9042

Petitioner filed a Notice of Appeal before the MBC on May 15, 1998. The appeal was given due course by the COMELEC Second Diviswhich rendered a resolution dated August 4, 1998, disposing as follows:

WHEREFORE, finding the preparation of the contested election returns to be tainted with irregularities, Commission (SECOND DIVISION) RESOLVED, as it hereby RESOLVES, to EXCLUDE Election Return No. 3000from Precinct No. 61-A; Election Return No. 3000977 from Precinct No. 62-A; and Election return No. 3000from Precinct Nos. 63-A/64-A (clustered).Respondent Mun(i)cipal Board of Canvassers is hereby directed to RECONVENE and FINISH the canvass of remaining or uncontested returns and thereafter, PROCLAIM the winning mayoralty candidate of Carles, Iloilo

SO ORDERED.4

On August 10, 1998, private respondent Felipe Bernal, Jr., filed a motion for reconsideration of the above-cited resolution with COMELEC en banc.On August 12, 1998, an order certifying that the motion for reconsideration and records of the case were elevated to the COMELEC en b

was signed by Commissioner Julio F. Desamito and issued by the Clerk of the Commission.Pending resolution of the motion for reconsideration and pursuant to the resolution of the COMELEC Second Division, Election OffRolando Dalen set the reconvening of the MBC on August 13, 1998, for the continuation of canvass proceedings and proclamationwinning candidates for Vice-Mayor and Municipal Councilors of Carles, Iloilo. No winner for the position of Mayor was proclaimed sprivate respondent was able to present a copy of his motion for reconsideration before the MBC. The MBC then reset the date reconvening of the board on August 17, 1998, after confirming by phone with COMELEC-Manila that a motion for reconsideration ndeed filed by private respondent. Thereafter, the MBC ruled that proclamation of the winning candidate for Mayor would proceed

August 17, 1998 unless private respondent could present a certification from the COMELEC that the motion for reconsideration

elevated to the COMELEC en banc.On August 17, 1998, despite presentation of the August 12, 1998 order, petitioner was proclaimed winner of the election after excludfrom the canvass the election returns from the three contested precincts in accordance with the COMELEC Second Division Resolution. MBC, with its Vice-Chairman dissenting, justified its act by reasoning that it did not receive an official copy of the order directing elevation of the case to the banc.The following day, private respondent immediately filed an urgent motion to declare void ab initio the proclamation of petitioner onground that the resolution of the COMELEC Second Division was not yet final and executory. For his part, petitioner opposed both motion for reconsideration and motion to declare void ab initio his proclamation as Mayor of Carles, asserting that private respondfailed to show palpable errors to warrant reconsideration of said resolution and maintaining, at the same time, that his proclamation wegal since respondent failed to produce the certification required by the MBC.

Meanwhile, on August 25, 1998, the duly-proclaimed Vice-Mayor Arnold Betita filed an action for quo warranto5 against petitioner be

the Regional Trial Court of Iloilo, Branch 66. Docketed as Spl. Civil Action No. 98-141, said petition included respondent Bernal as one ofpetitioners together with Vice-Mayor Betita.

On September 18, 1998, petitioner filed before the COMELEC en banc a motion to expunge respondent Bernal’s motion for reconsideraand motion to declare petitioner’s proclamation void ab initio, on the ground that respondent Bernal should be deemed to habandoned said motions by the filing of Spl. Civil Action No. 98-141 which, according to petitioner, is a formal election protest viawarranto brought before the regular courts.n a resolution dated August 24, 1999 but promulgated on March 2, 2000, the COMELEC en banc denied petitioner’s motion to expu

thus:WHEREFORE, premises considered, the Resolution of the Second Division is hereby REVERSED and SET ASIDE the proclamation of Rodolfo Dumayas, Jr. is hereby ANNULLED. A new Municipal Board of Canvassers of CarIloilo is hereby constituted with the following members: Atty. Nelia Aureus, Chairman; Atty. Rosel Abad, VChairman; and Atty. Manuel Lucero, Third Member – all of Election Contests and Adjudication Department ofCommission. They are directed to convene at Session Hall of the COMELEC – Main Office, Manila on the te(10

th) day from the date of promulgation of this Resolution with notice to the parties. The new board

canvassers shall complete the canvassing of all the returns and proceed with the proclamation of the true win

http://www.lawphil.net/judjuris/juri2001/apr2001/gr_141952_2001.html#fnt2






for the position of mayor of Carles, Iloilo. Petitioner Rodolfo Dumayas, Jr. is hereby directed to cease and defrom performing the functions of the office of mayor of Carles, Iloilo. Election Officer Rolando Dalen is herdirected to bring to the Commission’s Main Office the election returns of Carles, Iloilo which need to

canvassed and the other election documents necessary for the canvassing and proclamation and turn them oto the new board of canvassers.1âwphi1.nêt The Law Department is directed to investigate the election offense allegedly committed by PO3 Gilbert Soronon election day.Let the Deputy Executive Director for Operations of the Commission implement this Resolution with dispagiving a copy thereof to the Secretary of the Department of Interior and Local Government.SO ORDERED.

6

On March 13, 2000, respondent Bernal, Jr. was proclaimed by the newly-constituted Municipal Board of Canvassers as the duly-elecMayor of the Municipality of Carles, thereby unseating petitioner Dumayas.Hence, this instant special civil action where he alleges that:

A. RESPONDENT COMMISSION ERRED IN NOT HOLDING THAT, PRIVATE RESPONDENT FELIPE BERNAL JR. IS DEEMEDHAVE ABANDONED HIS MOTION FOR RECONSIDERATION BEFORE THE COMMISSION ON ELECTION EN BACONSIDERING THAT PRIVATE RESPONDENT, TOGETHER WITH ARNOLD BETITA FILED AN ELECTION CASE THRU A QWARRANTO, BEFORE THE REGIONAL TRIAL COURT OF ILOILO BRANCH 66, DOCKETED AS CASE NO. 98-141.

B. RESPONDENT COMMISSION ERRED IN UPHOLDING THE INCLUSION FOR CANVASS THE THREE ELECTION RETURNS PRECINCT NOS. 61-A, 62-A, and 63-A/64-A (CLUSTERED) BY THE MUNICIPAL BOARD OF CANVASSERS OF CARLES, ILONOTWITHSTANDING THE FACT THAT THERE IS CLEAR AND SUFFICIENT EVIDENCE TO SHOW THAT THE ELECTION RETUFOR THESE THREE PRECINCT(S) WERE PREPARED UNDER DURESS AND NOT PREPARED SIMULTANEOUSLY WITH COUNTING OF VOTES.

C.

THE RESOLUTION PROMULGATED ON MARCH 2, 2000 IS ILLEGAL AS IT WAS VIOLATIVE OF ARTICLE IX (A) SECTION 7

THE CONSTITUTION CONSIDERING THAT ONLY FOUR COMMISSIONERS VOTED TO REVERSE THE RESOLUTION DAAUGUST 4, 1998 OF THE SECOND DIVISION COMMISSION ON ELECTION AND THAT, TWO COMMISSIONER(S) HALREADY RETIRED, AT THE TIME OF THE PROMULGATION.

7

The following are the issues to be resolved: (1) Should respondent Bernal, who was named as petitioner in the quo warranto proceedcommenced before the regular court, be deemed to have abandoned the motions he had filed with respondent Commission? (2) Did COMELEC err in ordering the inclusion of the contested election returns in the canvassing of ballots? (3) In view of the retiremenCommissioners Gorospe and Guiani before the date of the promulgation of the assailed resolution on March 2, 2000, should said resolube deemed null and void for being violative of Article IX-A, Section 7 of the 1987 Constitution?We shall first discuss the third issue. Petitioner claims that March 2, 2000 Resolution of the COMELEC is void because CommissionManolo Gorospe and Japal Guiani have already retired on the date of its promulgation, even if they had participated earlier in deliberations of the case and signed the resolution dated August 24, 1999. Petitioner submits that this defect invalidated th e entire deciof the Commission and that accordingly, a new vote should be taken to settle the matter.

n Jamil vs. Commission on Elections,

8

we held that a decision becomes binding only after its promulgation. If at the time it is promulgatejudge or member of the collegiate court who had earlier signed or registered his vote has vacated office, his vote on the decision mautomatically be withdrawn or cancelled. Accordingly, the votes of Commissioners Gorospe and Guiani should merely be consideredwithdrawn for the reason that their retirement preceded the resolution’s promulgation. The effect of the withdrawal of their votes wo

be as if they had not signed the resolution at all and only the votes of the remaining commissioners would be properly considered for purpose of deciding the controversy.However, unless the withdrawal of the votes would materially affect the result insofar as votes for or against a party is concerned, we fno reason for declaring the decision a nullity. In the present case, with the cancellation of the votes of retired Commissioners Gorospe aGuiani, the remaining votes among the four incumbent commissioners at the time of the resolution’s promulgation would still b e 3 to favor of respondent. Noteworthy, these remaining Commissioners still constituted a quorum. In our view, the defect cited by petitiodoes not affect the substance or validity of respondent Commission’s disposition of the controversy. The nullification of the challenresolution, in our view, would merely prolong the proceedings unnecessarily.Now, regarding the first issue raised by petitioner. Did respondent Bernal effectively abandon his pending motions before the COMELEC

banc by the filing of Spl. Civil Action No. 98-141? Petitioner’s contention that Bernal did appears to us untenable.As a general rule, the filing of an election protest or a petition for quo warranto precludes the subsequent filing of a pre-proclamacontroversy or amounts to the abandonment of one earlier filed, thus depriving the COMELEC of the authority to inquire into and pupon the title of the protestee or the validity of his proclamation. The reason for this rule is that once the competent tribunal has acquijurisdiction of an election protest or a petition for quo warranto, all questions relative thereto will have to be decided in the case itself not in another proceeding, so as to prevent confusion and conflict of authority.

9

Nevertheless, the general rule is not absolute. It admits of certain exceptions, as where: (a) the board of canvassers was impropconstituted; (b) quo warranto was not the proper remedy; (c) what was filed was not really a petition for quo warranto or an elecprotest but a petition to annul a proclamation; (d) the filing of a quo warranto petition or an election protest was expressly made withprejudice to the pre-proclamation controversy or was made ad cautelam; and (e) the proclamation was null and void.

10

An examination of the petition filed primarily by Vice-Mayor Betita with the Regional Trial Court of Iloilo City reveals that it is neither awarranto petition under the Omnibus Election Code nor an election protest. In Samad vs. COMELEC

11, we explained that a petition for

warranto under the Omnibus Election Code raises in issue the disloyalty or ineligibility of the winning candidate. It is a proceeding to un






the respondent from office but not necessarily to install the petitioner in his place. An election protest is a contest between the defeaand winning candidates on the ground of frauds or irregularities in the casting and counting of the ballots, or in the preparation of returns. It raises the question of who actually obtained the plurality of the legal votes and therefore is entitled to hold the office.The allegations contained in Betita’s petition before the regular court do not present any proper issue for either an election protest or a

warranto case under the Omnibus Election Code. Spl. Civil Action NO. 98-141 appears to be in the nature of an action for usurpationpublic office brought by Betita to assert his right to the position of Mayor pursuant to the rules on succession of local government officcontained in the Local Government Code.

12 Although said petition is also denominated as a quo warranto petition under Rule 66 of

Rules of Court, it is different in nature from the quo warranto provided for in the Omnibus Election Code where the only issue properdetermination is either disloyalty or ineligibility of respondent therein. Neither can it be considered as an election protest since what wput forth as an issue in said petition was petitioner’s alleged unlawful assumption of the office of Mayor by virtue of his alleged ill

proclamation as the winning candidate in the election.A closer look at the specific allegations in the petition disclose that Spl. Civil Action No. 98-141 is actually an action for the annulmenpetitioner’s proclamation on the ground of illegality and prematurity. This conclusion is consistent with the rule that the nature of action is determined by the averments in the complaint or petition

13 and not the title or caption thereof. The material stipulations of

petition substantially state:13. That when the Board of Canvassers convened in the afternoon and despite the submission of copy of the order certifying the Motion for Reconsideration to the COMELEC En Banc and in violatiothe Comelec Rules and Procedure and due to the threat received by the Board, Mr. Dalen, the Chairmof the Board and Mr. Serafin Provido, Jr. signed the Certificate of Proclamation proclaiming respondas winner of the elections for Mayor. Mr. Deony Cabaobao did not signed (sic) the said CertificatProclamation as he dissented to (sic) the decision to proclaim respondent;14. The proclamation, therefore, of respondent is illegal and null and void from the very beginning f

was done in violation of law and under duress. The affidavit of Mr. Serafin Provido, Jr. a member of

Board of Canvassers showing duress is hereto attached as Annex "C";15. On account of the illegal proclamation of the respondent said proclamation does not vest any ror authority for him to sit as Mayor of the town of Carles thus when he sits as such Mayor he usuintrudes into, and unlawfully holds and exercise(s) a public office without authority;16. The authority to act as mayor for and in the absence of the duly proclaimed mayor is vestedpetitioner Betita pursuant to law;17. That the continued unlawful exercise by the respondent of the position of mayor of the towCarles will cause great and irreparable damage to the petitioners, particularly petitioner Betita,

pursuant to law is entitled to act as Mayor of the town of Carles and the people of Carles who payssalaries unless he be restrained or enjoined from siting (sic) as such Mayor;x x x

14

Thus, respondent Commission did not err, much less abuse its discretion, when it refused to consider as abandoned Bernal’s mo tion

reconsideration and urgent motion to declare petitioner’s proclamation as void ab initio. Note that under the allegations cited above,determination of Betita’s right would ultimately hinge on the validity of petitioner’s proclamation in the first place. To re peat, the "warranto" petition brought by Vice-Mayor Betita is a petition to annul petitioner’s proclamation over which COMELEC exercises origexclusive jurisdiction. Consequently, it could not be deemed as a proper remedy in favor of respondent Bernal, Jr. even if his name ncluded in the title of said petition.

We now consider whether the MBC’s proclamation of petitioner Dumayas as the winning candidate in the 1998 mayoralty election is and void. For where a proclamation is null and void, it is no proclamation at all such that the proclaimed candidate’s assumption of ocannot deprive the COMELEC of the power to declare such nullity and annul the proclamation.

15

Although petitioner’s proclamation was undertaken pursuant to the resolution of the COMELEC’s Second Division, it appears pla in tthat the latter grievously erred in ordering the exclusion of the contested returns from Precincts 61A, 62A and 63A/64A (clustered). On score, the Comelec en banc correctly reversed the Second Division by holding that petitioner Dumayas failed to justify the exclusion of sreturns on the ground of duress, intimidation, threat or coercion. We note that the only evidence submitted by petitioner to prove srregularities were self-serving affidavits executed by his watchers and supporters. Aside from the fact that these allegations w

countered by opposing affidavits made by the members of the Boards of Election Inspectors who are presumed to have regulperformed their duties

16 and who categorically denied the allegations, the election returns were also observed to be genuine, clean, sig

and/or thumbmarked by the proper officials and watchers.17

Well-entrenched is the rule that findings of fact by the COMELEC, or any other administrative agency exercising particular expertise ifield of endeavor, are binding on this Court.

18 In a pre-proclamation controversy, the board of canvassers and the COMELEC are

required to look beyond or behind the election returns which are on their face regular and authentic. Where a party seeks to raise issthe resolution of which would necessitate the COMELEC to pierce the veil of election returns which are prima facie regular, the proremedy is a regular election protest, not a pre-proclamation controversy.

19

n the present case, petitioner barely alleged that the preparation of said returns was attended by threats, duress, intimidation or coercwithout offering any proof, other than the affidavits mentioned above, that these had affected the regularity or genuineness of contested returns. Absent any evidence appearing on the face of the returns that they are indeed spurious, manufactured or tampewith, the election irregularities cited by petitioner would require the reception of evidence aliunde which cannot be done in a

proclamation controversy such as the one initiated by petitioner. Returns can not be excluded on mere allegation that the returns


















manufactured or fictitious when the returns, on their face, appear regular and without any physical signs of tampering, alteration or otsimilar vice. If there had been sham voting or minimal voting which was made to appear as normal through falsification of the elecreturns, such grounds are properly cognizable in an election protest and not in a pre-proclamation controversy.

20

n sum, we hold that the COMELEC en banc did not commit grave abuse of discretion in reversing the ruling of its Second Division. appeal brought by petitioner from the order of inclusion issued by the MBC should have been dismissed by that Division right away, sithe grounds for exclusion relied upon by petitioner are not proper in a pre-proclamation case, which is summary in nature.WHEREFORE, the instant petition is DISMISSED for lack of merit, public respondent having committed no grave abuse of discretionchallenged resolution dated August 24, 1999 is AFFIRMED. Costs against petitioner.1âwphi1.nêt SO ORDERED.Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Pardo, Buena Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr.,

Sandoval-Gutierrez, JJ., concur.[G.R. No. L-31455. February 28, 1985.]

FILIPINAS ENGINEERING AND MACHINE SHOP, Petitioner, v. HON. JAIME N. FERRER, LINO PATAJO and CESAR MIRAFLOR as Commissionof the Commission on Elections; COMELEC BIDDING COMMITTEE CHAIRMAN EMILIO AGUILA and MEMBERS PACIENCIO BALLALEJANDRO MACARANAS, TOMAS MALLONGA and ERNESTO LOMBOS; HON. JUDGE JOSE LEUTERIO of the Court of First Instance of ManBranch II and ACME STEEL MANUFACTURING COMPANY, Respondents.

SYLLABUS

1. REMEDIAL LAW; APPEAL; EXCLUSIVE JURISDICTION TO REVIEW FINAL DECISIONS OF COMELEC RELATIVE TO ELECTION AENFORCEMENT OF ELECTION LAWS; RESTS WITH THE SUPREME COURT. — It has been consistently held that it is the Supreme Court, the Court of First Instance, which has exclusive jurisdiction to review on certiorari; final decisions, orders or rulings of the COMELEC relato the conduct of elections and enforcement of election laws.

2. ID.; ACTION; ORDER OF THE COMELEC AWARDING CONTRACT TO A PRIVATE PARTY; QUESTION CONNECTED THEREWITH COGNIZABLTRIAL COURT IN AN ORDINARY CIVIL ACTION. — We are however, far from convince that an order of the COMELEC awarding a contract private party, as a result of its choice among various proposals submitted in response to its invitation to bid comes within the purview "final order" which is exclusively and directly appealable to this court on certiorari. What is contemplated by the term "final orders, ruland decisions" of the COMELEC reviewable by certiorari by the Supreme Court as provided by law are those rendered in actionsproceedings before the COMELEC and taken cognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers.

COMELEC resolution awarding the contract in favor of Acme was not issued pursuant to its quasi-judicial functions but merely asncident of its inherent administrative functions over the conduct of elections, and hence, the said resolution may not be deemed as a "forder" reviewable by certiorari by the Supreme Court. Being non-judicial in character, no contempt may be imposed by the COMELEC frsaid order, and no direct and exclusive appeal by certiorari to this Tribunal lie from such order. Any question arising from said order mawell taken in an ordinary civil action before the trial courts.

3. ID.; ID.; LACK OF CAUSE OF ACTION; CASE AT BAR. — On the second issue, We rule that Filipinas, the losing bidder, has no cause of acunder the premises to enjoin the COMELEC from pursuing its contract with Acme, the winning bidder. While it may be true that the lowcourt has the jurisdiction over controversies dealing with the COMELEC’s award of contracts, the same being purely administrative and n nature, nevertheless, herein petitioner has no cause of action on the basis of the allegations of its complaint. Indeed, while the

requires the exercise of sound discretion on the part of procurement authorities, and that the reservation to reject any or all bids may be used as a shield to a fraudulent award, petitioner has miserably failed to prove or substantiate the existence of malice or fraud onpart of the public respondents in the challenged award. Pursuant to COMELEC’s Invitation to Bid No. 12 7, a bidder may have the righ

demand damages, or unrealized or expected profits, only when his bid was accepted by resolution of the COMELEC. Filipinas’ bi d, althorecommended for award of contract by the bidding committee, was not the winning bid. No resolution to that effect appeared to hbeen issued by the COMELEC. Decidedly then, Filipinas has no cause of action.

4. CIVIL LAW; CONTRACT; MEETING OF MINDS; REQUIRED IN THE PERFECTION OF A CONTRACT. — Once more, We reiterate the dicearlier laid down in the case of Jalandoni v. National Resettlement and Rehabilitation Administration, Et Al., G.R. No. L-15198, May 30, 1(108 Phil. 486, 491-492) that — "Neither can it be contented that the fact that appellant gave the lowest quotation, which was favorndorsed by the Committee on Bids, created a vested right in favor of the said bidder. Admittedly, the offers were rejected by the Boun

Directors. It is clear therefore that there having no meeting of the minds of the parties, there was no perfected contract between thwhich could be the basis of action against the defendants-appellees. The presentation by a reliable and responsible bidder of the lowestto officials whose duty it is to let the contract to the lowest reliable and responsible bidder, but who have the right and have given nothat they reserve the right to reject any and all bids, does not constitute an agreement that they will make a contract with such a bid

nor vest in him such an absolute right to the contract as against a higher bidder (Colorado Paving Co. v. Murphy, (CCA 8th) 78 F. 28, 37 L



630). The mere determination of a public official or bound to accept the proposal of a bidder does not constitute a contract (SmithmeyUnited States, 147 U.S. 342, 37 L, ed. 196,13 S. Ct. 321); the decision must be communicated to the bidder (Cedur Rapids Lumber CoFischer, 129 Iowa 332, 105 N.W. 595, 4 LRA (NS) 177).

D E C I S I O N

CUEVAS, J.:

Appeal be Certiorari from the Order dated November 15, 1969 issued by the respondent Judge of the then Court of First Instance of MaBranch II, DISMISSING Civil Case No. 77972 entitled, "Filipinas Engineering and Machine Shop v. COMELEC, Et. Al.", and his Hon

subsequent Order of December 20, 1969 DENYING petitioner’s motion for reconsideration.

n preparation for the national elections of November 11, 1969, then respondent Commissioners of the Commission on Electi(COMELEC) issued an INVITATION TO BID CALL No. 127 on September 16, 1969 calling for the submission of sealed proposals for manufacture and delivery of 11,000 units of voting booths with the following specifications and descriptions, to wit:jgc:chanrobles.com.

"11,000 Units VOTING BOOTHS, easy to install and store. Must be of light but strong and durable materials, rust proof or rust resistant aconstruction must be sturdy. Each Unit shall consists of two (2) voting booths with overall measurements of 150 cms. long x 75 cms. wid

185 cms. high. (Each voting ‘booth or compartment measuring 75 cms. long x 75 cms. wide x 185 cms. high). The top and all sides excthe front side, shall be fully covered. The front side of the unit shall be without cover to serve as its opening (entrance). Each vocompartment shall be provided with a writing table.

"Each unit shall be contained in individual wooden box.

"Bidders are required to submit finished sample." 1

Among the seventeen bidders who submitted proposals in response to the said INVITATION were the herein petitioner, FilipEngineering and Machine Shop, (Filipinas for short) and the private respondent, Acme Steel Manufacturing Company, (Acme for short) .

Filipinas’ sealed proposal was as follows:chanrob1es virtual 1aw library

Prices Per Unit Brief Description

P128.00 Sample 2 — same in construction as

sample 1, except that its siding and top

cover is made of plywood (or lawanit if

available). 33.5 kilos in weight. Packed

n wooden box.

P123.00 Same as sample 2, except that it is

packed in corrogated carton box. 2

Acme’s bid was

Prices Per Unit Brief Description

P78.00 Made of steel, channel type frames

with steel sheet sidings, top cover and

table; painted, 51 kilos in weight. 3



On October 7, 1969, the respondent COMELEC Bidding Committee Chairman and Members submitted their Memorandum on proceedings taken pursuant to the said Invitation to Bid which stated that Acme’s bid had to be rejected because the sample i t submiwas "made of black iron sheets, painted, and therefore not rust proof or rust resistant," and that, "it is also heavy — 51 kilos in weighThe Committee instead recommended that Filipinas be awarded the contract to manufacture and supply the voting booths, but tha"ocular inspection be made by an members of the Commission of all the samples before the final award be made." 5

On October 9, 1969, after an ocular inspection of an the samples submitted was conducted by the COMELEC Commissioners, and after Commissioners noted that Acme submitted the lowest bid, the COMELEC issued a Resolution awarding the contract (for voting boothsAcme, subject to the condition, among others, that" (Acme) improves the sample submitted in such manner as it would be rust proo

rust resistant . . ." 6

On October 11, 1969, the COMELEC issued Purchase Order No. 682 for the manufacture and supply of the 11,000 Units of voting boothfavor of Acme. Acme accepted the terms of the purchase.

On October 16, 1969, Filipinas filed an Injunction suit with the then Court of First Instance of Manila, docketed as Civil Case No. 779against herein public respondents COMELEC Commissioners, chairman and members of the Comelec Bidding Committee, and privrespondent Acme.

Filipinas also applied for a writ of preliminary injunction. After hearing petitioner’s said application, the respondent Judge in an order daOctober 20, 1969 denied the writ prayed for. 7

Thereafter or more specifically on October 29, 1969, the public respondents filed a motion to Dismiss on the grounds that the lower c

has no jurisdiction over the nature of suit, and that the complaint states no cause of action. 8

Acting on the motion (to dismiss), the respondent Judge issued the questioned Order dismissing Civil Case No. 77972. Filipinas’ motion

reconsideration was denied for lack of merit.

Hence, the instant appeal.

n the meantime, since no restraining order had been issued against the holding of the national elections scheduled on November 11, 19Acme complied with its contract with the COMELEC.

On this score alone, this petition should be dismissed for being moot and academic. Considering however the nature and importance ofegal questions raised, We have opted to discuss and resolve the same with finality.

Two main issues are raised before Us, namely:chanrob1es virtual 1aw library

1. Whether or not the lower court has jurisdiction to take cognizance of a suit involving an order of the COMELEC dealing with an awarcontract arising from its invitation to bid; and

2. Whether or not Filipinas, the losing bidder, has a cause of action under the premises against the COMELEC and Acme, the winning bidto enjoin them from complying with their contract.

We resolve the first issue in the affirmative.

By constitutional mandate —

"The Commission on Elections shall have exclusive charge of the enforcement and administration of all laws relative to the conducelections and shall exercise all other functions which may be conferred upon it by law. It shall decide, save those involving the right to vall administrative questions affecting elections, including the determination of the number of location of polling places, and appointment of election inspectors and of other election officials . . . The decisions, orders and rulings of the Commission shall be subjecreview by the Supreme Court." (Section 2, Article X, 1935 Philippine Constitution, which was then in force)

Section 5 of the Revised Election Code (Republic Act No. 180, approved June 21, 1947, the election law then enforced) provided that,any controversy submitted to the Commission on Elections shall be tried, heard and decided by it within fifteen days counted from the tthe corresponding petition giving rise to said controversy is filed," and that, "any violation of any final and executory decision, orderruling of the Commission shall constitute contempt of court." Likewise, the same section provided that, "any decision, order or ruling ofCommission on Elections may be reviewed by the Supreme Court by writ of certiorari in accordance with the Rules of Court or with srules as may be promulgated by the Supreme Court."cralaw virtua1aw library



Similarly, Section 17(5) of the Judiciary Act of 1948 (Republic Act No. 296), as amended, provides that, "final awards, judgments, decisior orders of the Commission on Elections . . ." fall within the exclusive jurisdiction of the Supreme Court by way of certiorari. Section 1, 43 of the 1964 Revised Rules of Court prescribed the manner of appeal by certiorari to the Supreme Court from a final order, rulindecision of the Commission on Elections, among other administrative bodies.

Hence it has been consistently held 9 that it is the Supreme Court, not the Court of First Instance, which has exclusive jurisdiction to revon certiorari; final decisions, orders or rulings of the COMELEC relative to the conduct of elections and enforcement of election laws.

We are however, far from convince that an order of the COMELEC awarding a contract to a private party, as a result of its choice amvarious proposals submitted in response to its invitation to bid comes within the purview of a "final order" which is exclusively and dire

appealable to this court on certiorari. What is contemplated by the term "final orders, rulings and decisions" of the COMELEC reviewablcertiorari by the Supreme Court as provided by law are those rendered in actions or proceedings before the COMELEC and tacognizance of by the said body in the exercise of its adjudicatory or quasi-judicial powers.

t cannot be gainsaid that the powers vested by the Constitution and the law on the Commission on Elections may either be classifiethose pertaining to its adjudicatory or quasi-judicial functions, or those which are inherently administrative and sometimes ministeriacharacter.

Thus in the case of Masangcay v. Commission on Elections, G.R. No. L-13827, September 28, 1962 (6 SCRA 27, 2829), We held that —

". . . (W)e had the occasion to stress in the case of Guevarra v. Commission on Elections (G.R. No. L-12596, July 31, 1958) that under theand the constitution, the Commission on Elections has not only the duty to enforce and administer all laws relative to the conducelections, but also the power to try, hear and decide any controversy that may be submitted to it in connection with the elections. In t

sense, We said, the Commission, although it cannot be classified as a court of justice within the meaning of the Constitution (Sec. 30, ArtVIII), for it is merely an administrative body, may, however, exercise quasi-judicial functions insofar as controversies that by expprovision of law come under its jurisdiction. The difficulty lies in drawing the demarcation line between the duty which inherentadministrative in character and a function which calls for the exercise of the quasi-judicial function of the Commission. In the same case,also expressed the view that when the Commission exercises a ministerial function it cannot exercise the power to punish for contebecause such power is inherently judicial in nature . . ."cralaw virtua1aw library

We agree with petitioner’s contention that the order of the Commission granting the award to a bidder is not an order rendered in a lecontroversy before it wherein the parties filed their respective pleadings and presented evidence after which the questioned order ssued; and that this order of the commission was issued pursuant to its authority to enter into contracts in relation to election purpose

short, the COMELEC resolution awarding the contract in favor of Acme was not issued pursuant to its quasi-judicial functions but merelyan incident of its inherent administrative functions over the conduct of elections, and hence, the said resolution may not be deemed

"final order" reviewable by certiorari by the Supreme Court. Being non-judicial in character, no contempt may be imposed by the COMEfrom said order, and no direct and exclusive appeal by certiorari to this Tribunal lie from such order. Any question arising from said omay be well taken in an ordinary civil action before the trial courts.

On the second issue, We rule that Filipinas, the losing bidder, has no cause of action under the premises to enjoin the COMELEC frpursuing its contract with Acme, the winning bidder.

While it may be true that the lower court has the jurisdiction over controver sies dealing with the COMELEC’s award of contracts, the sa

being purely administrative and civil in nature, nevertheless, herein petitioner has no cause of action on the basis of the allegations ocomplaint.

ndeed, while the law requires the exercise of sound discretion on the part of procurement authorities, 10 and that the reservation to reany or all bids may not be used as a shield to a fraudulent award, 11 petitioner has miserably failed to prove or substantiate the existe

of malice or fraud on the part of the public respondents in the challenged award.

The COMELEC’s Invitation to Bid No. 127, dated September 16, 1969, expressly stipulates —

"8. AWARD OF CONTRACT

Subject to the rights herein reserved, award shall be made by the Commission by resolution to the lowest and responsible bidder whoffer will best serve the interest of the Commission on Elections. The resolution of the Commission shall be communicated in writing towinning bidder. The winning bidder or awardees shall enter into contract with the Commission on Elections for the supply of the votbooths under the terms and conditions embodied in the Invitation to Bid.

THE COMMISSION ON ELECTIONS RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS; TO WAIVE ANY INFORMATION THEREIN; OR

ACCEPT SUCH BID AS MAY IN ITS DISCRETION BE CONSIDERED MOST REASONABLE AND ADVANTAGEOUS. The right is also reserved



reject bids which are defective due to inadequate preparation, omission or lacks sufficient data, guarantee and other information requto be submitted, or bids without the accompanying bond. The right is further reserved to reject the bid of a bidder who had previofailed to perform properly or to deliver on time materials covered by contract of similar nature.

x x x

"14. THIS CALL FOR BIDS IS NO MORE THAN AN INVITATION TO MAKE PROPOSALS AND THE COMMISSION ON ELECTIONS IS NOT BOUTO ACCEPT ANY BID, NOR SHALL THE CALL FOR BIDS BY ITSELF CONFER A RIGHT TO ANY BIDDER TO ACTION FOR DAMAGES OR UNREALI

OR EXPECTED PROFITS UNLESS THE BID IS DULY ACCEPTED BY THE RESOLUTION OF THE COMMISSION ON ELECTIONS." 12 (Emphsupplied)

The "Bidders Tender Call No. 127", the form accomplished by the bidder pursuant to Invitation to Bid No. 127, also categorically provthat the bidder submits his proposals "subject to the conditions stated in the invitation." 13

t is crystal clear from the aforequoted conditions, that subject to the rights of the COMELEC duly reserved in the said Invitation, award sbe made to the lowest and responsible bidder whose offer will best serve the interest of the COMELEC; that the COMELEC had reservedright, among others, to accept such bid, as may in its discretion, be considered most reasonable and advantageous; and that the invitatwas merely a call for proposals. Consequently, the COMELEC was not under legal obligation to accept any bid since "Advertisementsbidders are simply invitation to make proposals and the advertiser is not bound to accept the highest or lowest bidder, unless the contappears." 14

Pursuant to COMELEC’s Invitation to Bid No. 127, a bidder may have the right to demand damages, or unrealized or expected pro fits, when his bid was accepted by resolution of the COMELEC. Filipinas’ bid, although recommended for award of contract by the bidcommittee, was not the winning bid. No resolution to that effect appeared to have been issued by the COMELEC. Decidedly then, Filipihas no cause of action.

n Leoquinco v. Postal Savings Bank, 47 Phil. 772, 774-775, this Court held:jgc:chanrobles.com.ph

". . . (A)ppellant set forth and admitted in his pleadings in the regulation adopted by the Board of Directors authorizing the sale at puauction of the land, as well as the notice announcing the auction that appellant had expressly reserved to themselves the right to rejectand all bids. By taking part in the auction and offering his bid, the appellant voluntarily submitted to the terms and conditions of the aucsale announced in the notice, and clearly acknowledged the right reserved to the appellees. The appellees, making use of that rirejected his offer. Clearly the appellant has no ground of action to compel them to execute a deed of sale of the land in his favor, no

compel them to accept his bid or offer . . ."cralaw virtua1aw library

n issuing the resolution awarding the contract for voting booths in Acme’s favor, the Commissioners of the COMELEC had taken account that Acme’s bid was the lowest; that Acme was a respons ible manufacturer; and that upon an ocular inspection of the samsubmitted by the bidders, Acme’s sample was favorable chosen subject to certain conditions cited in the resolution. In fine, the purespondents properly exercised its sound discretion in making the award.

Once more, We reiterate the dictum earlier laid down in the case of Jalandoni v. National Resettlement and Rehabilitation AdministratEt Al., G.R. No. L-15198, May 30, 1960 (108 Phil. 486, 491-492) that —

"Neither can it be contented that the fact that appellant gave the lowest quotation, which was favorably indorsed by the CommitteeBids, created a vested right in favor of the said bidder. Admittedly, the offers were rejected by the Bound of Directors. It is clear therefthat there having no meeting of the minds of the parties, there was no perfected contract between them which could be the basis of ac

against the defendants-appellees.

The presentation by a reliable and responsible bidder of the lowest bid to officials whose duty it is to let the contract to the lowest reliaand responsible bidder, but who have the right and have given notice that they reserve the right to reject any and all bids, does constitute an agreement that they will make a contract with such a bidder, nor vest in him such an absolute right to the contract as agaa higher bidder (Colorado Paving Co. v. Murphy, (CCA 8th) 78 F. 28, 37 LRA 630).

The mere determination of a public official or bound to accept the proposal of a bidder does not constitute a contract (SmithmeyeUnited States, 147 U.S. 342, 37 L, ed. 196,13 S. Ct. 321); the decision must be communicated to the bidder (Cedur Rapids Lumber CoFischer, 129 Iowa 332, 105 N.W. 595, 4 LRA (NS) 177).



No contractual relation can arise merely from a bid, unless by the terms of the statute and the advertisement, a bid in pursuance thereoas a matter of law, an acceptance of an offer, wholly apart from any action on the part of the municipality or any of its officers (MolloRochelle, supra)."cralaw virtua1aw library

WHEREFORE, finding the instant petition to be without merit aside from being moot and academic, the same is hereby DISMISSED.

No pronouncement as to costs.

SO ORDERED.

Makasiar, Concepcion Jr., Abad Santos and Escolin, JJ., concur.

Aquino, J., in the result. Case has become moot.[G.R. No. L-61676. October 18, 1982.]

EDITHA B. SALIGUMBA, Petitioner, v. COMMISSION ON AUDIT AND LEONARDO ESTELLA, Respondents.

Torcuato L. Galon for Petitioner.

SYNOPSIS

On the basis of a sworn complaint of petitioner, respondent Commission on Audit (COA) instituted an administrative case against priv

respondent, an Auditing Examiner in the Auditor’s Office of Misamis Occidental, for allegedly raping petitioner on several occasiRespondent Commission, however, dismissed the complaint for insufficiency of evidence but warned private respondent to comphimself in such a manner as would forest all the filing of similar complaints in the future. Hence, this petition for review wherein petitionsists that the decision of respondent Commission is contrary to evidence.

The Supreme Court held that its power to review decisions of the Commission on Audit refers to money matters and not to administracases involving the discipline of its personnel; and that even assuming that the Court has jurisdiction to review COA decisionsadministrative matters as to personnel discipline, it cannot do soon factual issues because its power to review is limited to legal issues.

Petition dismissed.

SYLLABUS

1. CONSTITUTIONAL LAW; JUDICIARY; SUPREME COURT; POWER TO REVIEW DECISIONS OF THE COMMISSION ON AUDIT; REFFERSMONEY MATTERS AND NOT. APPLICABLE TO ADMINISTRATIVE CASES INVOLVING PERSONNEL DISCIPLINE. — The power of the SupreCourt to review decisions of the Commission on Audit refers to money matters and not to administrative cases involving the di scipline opersonnel.

2. ID.; ID.; ID.; ID.; LIMITED TO LEGAL ISSUES. — Even assuming that the Supreme Court has jurisdiction to review decisions of Commission on Audit on administrative matters as to personnel discipline, the Court cannot do so on factual issues because its powereview is limited to legal issues.

R E S O L U T I O N

ABAD SANTOS, J.:

This is a petition to review the decision of the Commission on Audit (COA) in Administrative Case No. 81-525 for disgraceful and immoconduct.



On the basis of the sworn complaint of Editha Saligumba, the COA instituted the administrative case against Leonardo Estella, AudiExaminer III, in the Auditor’s Office of Misamis Occidental. The charge was that the respondent raped Editha Saligumba on sev

occasions.

On April 12, 1982, the COA rendered a decision with the following judgment:jgc:chanrobles.com.ph

"Wherefore, for insufficiency of evidence, the instant charge is hereby dropped. Respondent is, however, warned to comfort himhenceforth in such a manner as would forestall the filing of similar complaints in the future."cralaw virtua1aw library

Editha Saligumba now wants Us to review the COA decision. She insists that the decision of the COA is contrary to the evidence. Thus,

raises these "vital issues" :jgc:chanrobles.com.ph

"a) Was the petitioner raped on three (3) occasions by respondent Estella, with grave abuse of confidence?

"b) Was petitioner fabricating her charges against the respondent?

"c) Is respondent Estella the father of the child of the petitioner by his maneuvers of amicable settlement indicating his guilt?

"d) Whose testimonies are more credible, that of petitioner or that of respondent Estella including their witnesses?

"e) Is respondent Estella guilty of immorality and fit to be dismissed from service?

"f) Is the commission on audit ignoring the evidence on record of the petitioner, because the investigating lawyer who received

evidence in Oroquieta City, Philippines; the mother of the investigator, is the superior of respondent Estella’s wife as a classroom teache

The petition has to be dismissed for the following reasons:chanrob1es virtual 1aw library

1. Our power to review COA decisions refers to money matters and not to administrative cases involving the discipline of its personnel.

2. Even assuming that We have jurisdiction to review decisions on administrative matters as mentioned above, We can not do so on facssues; Our power to review is limited to legal issues.

Accordingly, the petition is dismissed.

SO ORDERED.

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

THELMA P. GAMINDE, Petitioner, v. COMMISSION ON AUDIT and/or Hon. CELSO D. GANGAN, Hon. RAUL C. FLORES and EMMANUELDALMAN, Respondents.

D E C I S I O N

PARDO, J.:

The Case

The case is a special civil action of certiorari seeking to annul and set aside two "decisions" of the Commission on Audit ruling tpetitioner’s term of office as Commissioner, Civil Service Commission, to which she was appointed on June 11, 1993, expired o n Febr02, 1999, as set forth in her appointment paper.chanrob1es virtua1 1aw 1ibrary

The Facts



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

"11 June 1993

"Madam :jgc:chanrobles.com.ph

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

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

However, on February 24, 1998, petitioner sought clarification from the Office of the President as to the expiry date of her term of officereply to her request, the Chief Presidential Legal Counsel, in a letter dated April 07, 1998 2 opined that petitioner’s term of office wo

expire on February 02, 2000, not on February 02, 1999.chanrob1es virtua1 1aw 1ibrary

Relying on said advisory opinion, petitioner remained in office after February 02, 1999. On February 04, 1999, Chairman Corazon Alma GLeon, wrote the Commission on Audit requesting opinion on whether or not Commissioner Thelma P. Gaminde and her co-terminous smay be paid their salaries notwithstanding the expiration of their appointments on February 02, 1999.

On February 18, 1999, the General Counsel, Commission on Audit, issued an opinion that "the term of Commissioner Gaminde has exp

on February 02, 1999 as stated in her appointment conformably with the constitutional intent." 3

Consequently, on March 24, 1999, CSC Resident Auditor Flovitas U. Felipe issued notice of disallowance No. 99-002-101 (99), disallowinaudit the salaries and emoluments pertaining to petitioner and her co-terminous staff, effective February 02, 1999. 4

On April 5, 1999, petitioner appealed the disallowance to the Commission on Audit en banc. On June 15, 1999, the Commission on Assued Decision No. 99-090 dismissing petitioner’s appeal. The Commission on Audit affirmed the propriety of the disallowance, hold

that the issue of petitioner’s term of office may be properly addressed by mere reference to her appointment paper which set

expiration date on February 02, 1999, and that the Commission is bereft of power to recognize an extension of her term, not even withmplied acquiescence of the Office of the President. 5

n time, petitioner moved for reconsideration; however, on August 17, 1999, the Commission on Audit denied the motion in Decision

99-129. 6

Hence, this petition. 7

The Issue

The basic issue raised is whether the term of office of Atty. Thelma P. Gaminde, as Commissioner, Civil Service Commission, to which was appointed on June 11, 1993, expired on February 02, 1999, as stated in the appointment paper, or on February 02, 2000, as claimedher.chanrob1es virtua1 1aw 1ibrary

The Court’s Ruling

The term of office of the Chairman and members of the Civil Service Commission is prescribed in the 1987 Constitution,follows:jgc:chanrobles.com.ph

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

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

provision on the 1973 Constitution reads:jgc:chanrobles.com.ph



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

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

"SECTION 1. There shall be an independent Commission on Elections composed of a Chairman and two other Members to be appointed

the President with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may notreappointed. Of the Members of the Commission first appointed, one shall hold office for nine years, another for six years, and the thirdthree years. The Chairman and the other Members of the Commission on Elections may be removed from office only by impeachmenthe manner provided in this Constitution." 10

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

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

Applying the foregoing conditions to the case at bar, we rule that the appropriate starting point of the terms of office of the first appointo the Constitutional Commissions under the 1987 Constitution must be on February 02, 1987, the date of the adoption of the 1Constitution. In case of a belated appointment or qualification, the interval between the start of the term and the actual qualification ofappointee must be counted against the latter. 14

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

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

On the other hand, Article XVIII, Transitory Provisions, 1987 Constitution provides:jgc:chanrobles.com.ph

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

What the above quoted Transitory Provisions contemplate is "tenure" not "term" of the incumbent Chairmen and Members of the Service Commission, the Commission on Elections and the Commission on Audit, who "shall continue in office for one year after ratification of this Constitution, unless they are sooner removed for cause or become incapacitated to discharge the duties o f their officappointed to a new term thereunder." The term "unless" imports an exception to the general rule. 17 Clearly, the transitory provisimean that the incumbent members of the Constitutional Commissions shall continue in office for one year after the ratification of Constitution under their existing appointments at the discretion of the appointing power, who may cut short their tenure by: (1) tremoval from office for cause; (2) their becoming incapacitated to discharge the duties of their office, or (3) their appointment to a term thereunder, all of which events may occur before the end of the one year period after the effectivity of the Constitution.chanrobvirtua1 1aw 1ibrary

However, the transitory provisions do not affect the term of office in Article IX, providing for a seven-five-three year rotational interva

the first appointees under this Constitution.



At the time of the adoption of the 1987 Constitution, the incumbent Chairman and members of the Civil Service Commission were following: (1) Chairperson Celerina G. Gotladera. She was initially appointed as OIC Chairman on March 19, 1986, and appointed chairmon December 24, 1986, which she assumed on March 13, 1987. (2) Atty. Cirilo G. Montejo. On June 25, 1986, President Corazon C. Aquappointed him Commissioner, without any term. He assumed office on July 9, 1986, and served until March 31, 1987, when he filecertificate of candidacy for the position of Congressman, 2nd District of Leyte, thereby vacating his position as Commissioner. His tenwas automatically cut-off by the filing of his certificate of candidacy. (3) Atty. Mario D. Yango. On January 22, 1985, President FerdinanMarcos appointed him Commissioner for a term expiring January 25, 1990. He served until February 2, 1988, when his term ended in viof the transitory provision referred to. On May 30, 1988, President Aquino re-appointed him to a new three-year term and served until 31, 1991, exceeding his lawful term, but not exceeding the maximum of seven years, including service before the ratification of the 1

Constitution. Under this factual milieu, it was only Commissioner Yango who was extended a new term under the 1987 Constitution. Tperiod consumed between the start of the term on February 02, 1987, and his actual assumption on May 30, 1988, due to his belaappointment, must be counted against him.

Given the foregoing common starting point, we compute the terms of the first appointees and their successors to the Civil SerCommission under the 1987 Constitution by their respective lines, as follows:chanrob1es virtual 1aw library

First line: Chairman — seven-year term. February 02, 1987 to February 01, 1994. On January 30, 1988, the President nominated Ms. PatA. Sto. Tomas Chairman, Civil Service Commission. On March 02, 1988, the Commission on Appointments confirmed the nomination. assumed office on March 04, 1988. Her term ended on February 02, 1994. She served as de facto Chairman until March 04, 1995. On M05, 1995, the President appointed then Social Welfare Secretary Corazon Alma G. de Leon, Chairman, Civil Service Commission, to a regseven-year term. This term must be deemed to start on February 02, 1994, immediately succeeding her predecessor, whose term staon the common date of the terms of office of the first appointees under the 1987 Constitution. She assumed office on March 22, 1995, f

term expiring February 02, 2001.chanrob1es virtua1 1aw 1ibrary

This is shown in her appointment paper, quoted verbatim as follows:jgc:chanrobles.com.ph

"March 5, 1995

"Madam :jgc:chanrobles.com.ph

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

"By virtue hereof, you may qualify and enter upon the performance of the duties of the office, furnishing this Office and the Civil Ser

Commission with copies of your oath of office.

"(Sgd.) FIDEL V. RAMOS"

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

On June 11, 1993, the President appointed Atty. Thelma P. Gaminde Commissioner, Civil Service Commission, for a term expiring Febru02, 1999. 18 This terminal date is specified in her appointment paper. On September 07, 1993, the Commission on Appointments confirmthe appointment. She accepted the appointment and assumed office on June 22, 1993. She is bound by the term of the appointment accepted, expiring February 02, 1999. In this connection, the letter dated April 07, 1998, of Deputy Executive Secretary Renato C. Coron

clarifying that her term would expire on February 02, 2000, was in error. What was submitted to the Commission on Appointments wanomination for a term expiring on February 02, 1999. Thus, the term of her successor 20 must be deemed to start on February 02, 1and expire on February 02, 2006.chanrob1es virtua1 1aw 1ibrary

Third line: Commissioner — Three-year term. February 02, 1987 to February 02, 1990. Atty. Mario D. Yango was incumbent commissioat the time of the adoption of the 1987 Constitution. His extended tenure ended on February 02, 1988. In May, 1988, President CorazoAquino appointed him Commissioner, Civil Service Commission to a new three-year term thereunder. He assumed office on May 30, 19His term ended on February 02, 1990, but served as de facto Commissioner until May 31, 1991. On November 26, 1991, the Presidnominated Atty. Ramon P. Ereñeta as Commissioner, Civil Service Commission. On December 04, 1991, the Commission on Appointmeconfirmed the nomination. He assumed office on December 12, 1991, for a term expiring February 02, 1997. 21

Commendably, he voluntarily retired on February 02, 1997. On February 03, 1997, President Fidel V. Ramos appointed Atty. Jose

Erestain, Jr. Commissioner, Civil Service Commission, for a term expiring February 02, 2004. He assumed office on February 11, 1997.



Thus, we see the regular interval of vacancy every two (2) years, namely, February 02, 1994, for the first Chairman, 22 February 02, 19for the first five-year term Commissioner, 23 and February 02, 1990, for the first three-year term Commissioner. 24 Their successors malso maintain the two year interval, namely: February 02, 2001, for Chairman; 25 February 02, 1999, for Commissioner Thelma P. Gaminand February 02, 1997, for Commissioner Ramon P. Ereñeta, Jr.

The third batch of appointees would then be having terms of office as follows:chanrob1es virtual 1aw library

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

virtua1 1aw 1ibrary

The line of succession, terms of office and tenure of the Chairman and members of the Civil Service Commission may be outlined as follo28

Chairman

(7-year original) Term Tenure

Sto. Tomas — 1st appointee Feb. 02, 1987 to Mar. 04, 1998 to

Feb. 02, 1994 March 08, 1995

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

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

______ — 3rd appointee Feb. 02, 2001 to

Feb. 02, 2008

2nd Member


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

Feb. 02, 1992 March 04, 1993

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

Feb. 02, 1999 Feb. 02, 2000

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


3rd Member


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

Feb. 02, 1990 May 31, 1991

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

Feb. 02, 1997 Feb. 02, 1997

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




The Fallo

WHEREFORE, we adjudge that the term of office of Ms. Thelma P. Gaminde as Commissioner, Civil Service Commission, underappointment extended to her by President Fidel V. Ramos on June 11, 1993, expired on February 02, 1999. However, she served as de fofficer in good faith until February 02, 2000, and thus entitled to receive her salary and other emoluments for actual service rendeConsequently, the Commission on Audit erred in disallowing in audit such salary and other emoluments, including that of her co-terminstaff.chanrob1es virtua1 1aw 1ibrary

ACCORDINGLY, we REVERSE the decisions of the Commission on Audit insofar as they disallow the salaries and emolumentsCommissioner Thelma P. Gaminde and her coterminous staff during her tenure as de facto officer from February 02, 1999, until Febru02, 2000.

This decision shall be effective immediately.

No costs.

SO ORDERED.chanrob1es virtua1 1aw 1ibrary

Davide, Jr., C.J., Melo, Vitug, Kapunan, Panganiban, Quisumbing, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Bellosillo, J., took no part; related to one of parties.

Puno, J., concurs in the result.

[G.R. No. 129133. November 25, 1998]

ECONOMIC INTELLIGENCE AND INVESTIGATION BUREAU, petitioner, vs. HON. COURT OF APPEALS and CIVIL SERVICE COMMISSrespondents.

D E C I S I O N

PURISIMA, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court to review and set aside the 7 Novem1996 Decision[1] and 18 March 1997 Resolution[2] of the Court of Appeals[3] in CA - G.R. SP No. 37720.

As culled by the Court of Appeals, the antecedent facts that matter are, as follows:

“In a letter dated October 13, 1988, respondent CSC through Chairman Patricia A. Sto. Tomas required the Secretary of Finance to subto the CSC all appointments in the Economic Intelligence and Investigation Bureau (EIIB).

nstead of complying with the said letter, petitioner Jose T. Almonte, as Commissioner of EIIB, wrote a letter dated March 29, 1989respondent CSC, requesting for confirmation of EIIB’s exemption from CSC rules and regulations with respect to appointments and o

personnel actions invoking as basis for such exemption PD No. 1458 and LOI No. 71.

On June 21, 1989, respondent CSC issued the subject Resolution No. 89-400, denying petitioner Almonte’s request for exemption of the

from the coverage of the civil service rules and regulations and reiterating its order that petitioner EIIB submit to the CSC all appointmto career or non-career positions in the Bureau.

Not having received any compliance from petitioners, respondent CSC, in its Order of December 7, 1990, directed petitioner JosAlmonte to immediately implement Resolution No. 89-400, with a warning that any EIIB official who shall fail or refuse to comply withsaid order shall be held liable for indirect contempt.

On June 4, 1991, respondent CSC issued another order, requiring petitioner Almonte to show cause why he should not be cited for indicontempt for his continued refusal to implement or comply with CSC Resolution No. 89-400 and the Order of December 7, 1990.

n a letter, dated June 13, 1991, petitioner Almonte explained to the respondent CSC the reasons of the EIIB for its inability to comply wResolution No. 89-400. He invoked PD No. 1458 and LOI No. 71 exempting the EIIB from the coverage of civil service rules and regulat



on appointments and other personnel actions. Petitioner Almonte prayed that Resolution No. 89-400, the Order of June 4, 1991, andsubsequent orders be set aside.

On August 22, 1991, respondent CSC issued an order, finding petitioner Almonte guilty of indirect contempt of the Commission, dispositive portion of which reads as follows:

“WHEREFORE, foregoing premises considered, the Commission hereby resolves to find and adjudge Jose T. Almonte, Commissioner, Eguilty of indirect contempt of the Commission pursuant to Section 12 (11), Book V, Subtitle A of Executive Order No. 292 Memorandum Circular No. 42, series of 1990. He is thus meted the penalty of fine P1,000.00 each day from the date of receipt of Order dated December 7, 1990. Accordingly, the Cashier of the EIIB is hereby directed to deduct from the salary of Commissioner Almo

the amount of P1,000.00 each day of his failure to comply with the above CSC Order. Let copies of this Order be furnished the ResidAuditor of the EIIB as well as the COA, the Secretary of the Department of Finance and the CSFO-DND, for their information and guidanc

SO ORDERED.”

Dissatisfied therewith, petitioner went to the Court of Appeals on a Petition for Certiorari. However, on November 7, 1996, the CouAppeals dismissed the petition; ratiocinating thus:

“The 1987 Constitution is so clear and categorical in its mandate that:

‘Article IX (B), Section 2 (1). - The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Governmncluding government-owned or controlled corporations with original charters.’

The civil service contemplated in the constitutional provision is very comprehensive in its scope, that it includes every category of officeemployee of the government, its branches, subdivisions and instrumentalities, and even employees of private corporations, if scorporations are controlled or owned by the government with original charters.

n the light of this constitutional mandate, petitioner EIIB, being a government agency, is necessarily embraced by the civil service. The that positions in the EIIB are primarily confidential did not place it outside the domain of civil servants, since ‘it is conceded that

holding in the Government a primarily confidential position is in the Civil Service’ (Ingles v. Mutuc, 26 SCRA 171). That fact merely exemconfidential positions in the EIIB from the constitutional rule that ‘appointments in the civil service shall be made only according to m

and fitness to be determined, as far as practicable ... by competitive examination *Art. IX (B), Sec. 2 (2) +’. And it is in this sense thatprovisions of PD 1458, particularly Section 5 and LOI 71 relied upon by the petitioners should be interpreted.

Neither does petitioners’ contention that ‘if EIIB’s positions and personnel actions will be opened, one may know its operati

movements, targets, strategies, and tactics and the whole of its being’ deserve merit, as the same is pure speculation and conjecture. officials and personnel remain civil servants and as correctly argued by the Solicitor General, ‘EIIB officials occupying confidential positiremain accountable to the people and are subject to the same state policies on morale, efficiency, integrity, responsiveness and courtesthe civil service’. Thus, We hold that the personnel in the EEIB are covered by the civil service.

x x x

WHEREFORE, the Court upholds Resolution No. 89-400 but declares CSC Orders of December 7, 1990, June 4, 1991, and of August 22, 19as NULL AND VOID, the Civil Service Commission not having jurisdiction to cite and punish Commissioner Jose T. Almonte of the Econontelligence and Investigation Bureau for indirect contempt of the Commission.”

With the denial of its motion for reconsideration by Resolution, dated March 18, 1997, of the Court of Appeals, petitioner found its wathis Court via the present Petition; contending, that:

N HOLDING THAT PETITIONER IS COVERED BY CIVIL SERVICE, RESPONDENT COURT VIOLATED P.D. No. 1458 AND LOI No. 71 WHEXPRESSLY EXEMPT IT FROM CIVIL SERVICE COVERAGE.

The pivotal issue here is: whether or not the petitioner, Economic Intelligence Investigation Bureau (EIIB), is embraced by the Civil Servic

Section 2, subparagraph (1), Article IX, paragraph (B) of the 1987 Constitution provides:

“The civil service embraces all branches, subdivisions, instrumentalities, agencies of the Government, including government-ownecontrolled corporations with original charter.”

Succinct and clear is the provision of the Constitution in point that all government agencies, without exception, are covered by the

service.



Petitioner EIIB is a government agency under the Department of Finance as provided by Section 17, Chapter 4, Title II, Book IV of the 1Administrative Code.[4] Therefore, EIIB is within the ambit of the Civil Service Law.

The civil service within the contemplation of the aforecited constitutional provision is comprehensive in scope. It embraces all officers employees of the government, its branches, subdivisions and instrumentalities. Even employees of corporations owned or controlledthe government, with original charters, are covered thereby.

Petitioner contends that EIIB is expressly exempted from civil service coverage, under Section 5 of P.D. No. 1458, which provides :

“Application of WAPCO and Civil Service Rules - Personnel of the FDIIB shall be exempted from WAPCO and Civil Service Rules Regulations relative to appointments and other personnel actions: Provided, That they shall be entitled to the benefits and privileaccorded to government employees ...”

On the other hand, LOI No. 71, the Implementing Rules of P.D. No. 1458, reads:

“10. It is further directed that personnel of the BII shall be exempt from OCPC and Civil Service Rules and Regulations relativappointments and other personnel actions; Provided, That they shall be entitled to the benefits accorded to government employees ... "

Petitioner’s submission is barren of merit.

The aforecited provisions of law provide for the exemption of petitioner EIIB only from Civil Service Rules and Regulations relativeappointments and other personnel actions, but not from the Civil Service Law or Civil Service Rules and Regulations relative to any ot

matter.

Neither can we uphold petitioner’s reliance on Section 26 of Executive Order No. 127.[5] Petitioner, in gist, asserts exemption from Service coverage since the Bureau forms part of the intelligence community created under the said Executive Order.

There is merit in the disquisition by the Court of Appeals that membership of petitioner EIIB in the intelligence community is of no momnsofar as application of the Civil Service Law is concerned. The National Bureau of Investigation (NBI), also a member of the intellige

community which performs functions similar to those of EIIB, e.g., intelligence gathering, investigation, research, etc., submits to the Service Commission the appointments of all NBI personnel, whether belonging to the career or non-career service. Besides, in IngleMutuc, 26 SCRA 171, this Court ruled that “… one holding in the Government a primarily confidential position is ‘ in the Civil Service’.”

Equally untenable is petitioner’s contention that because the personnel of EIIB are occupying jobs highly confidential in nat ure, the

should not be required to submit the names of its personnel to the Civil Service Commission.

n Almonte vs. Vasquez, 244 SCRA 286 [1995], EIIB was ordered by the Ombudsman to produce documents relating to personnel servand salary vouchers of EIIB employees. The Bureau pleaded that such documents are classified, and knowledge of EIIB’s docum

relative to its Personnel Services Funds and its plantilla will inevitably lead to knowledge of its operations, movements, targets strategies, which could destroy the Bureau itself. The Court ruled that the required documents can be examined by the Ombudsmexplaining that:

“... *T+here is no claim that military or diplomatic secrets will be disclosed by the production of records pertaining to the personnel ofEIIB. Indeed, EIIB’s function is the gathering and evaluation of intelligence reports and information regarding ‘illegal activities affectingnational economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, do llar salting.’ Consequently, while in c

which involve state secrets it may be sufficient to determine from the circumstances of the case that there is reasonable danger tcompulsion of the evidence will expose military matters without compelling production, no similar excuse can be made for a privi

resting on other considerations.

Nor has our attention been called to any law or regulation which considers personnel records of the EIIB as classified information ...”

All things viewed in proper perspective, we are of the opinion, and so hold, that the Court of Appeals erred not in holding that:

“ ... *R+espondent CSC’s act of requiring petitioner EIIB to submit to it all appointments in the Bureau, for appropriate act ion, is part oadministrative function as the central personnel agency of the government.“

WHEREFORE, the petition is hereby DENIED; and the Decision of the Court of Appeals in CA-GR SP No. 37720 AFFIRMED, without pronouncement as to costs.

SO ORDERED.



[G.R. No. 123708. June 19, 1997]

CIVIL SERVICE COMMISSION and PHILIPPINE AMUSEMENT AND GAMING CORPORATION, petitioners, vs. RAFAEL M. SALAS, respondent.

D E C I S I O N

REGALADO, J.:

The present petition for review on certiorari seeks to nullify the decision of the Court of Appeals, dated September 14, 1995, in CA-G.RNo. 38319 which set aside Resolution No. 92-1283 of the Civil Service Commission (CSC) and ordered the reinstatement of herein priv

respondent Rafael M. Salas with full back wages for having been illegally dismissed by the Philippine Amusement and Gaming Corpora(PAGCOR), but without prejudice to the filing of administrative charges against him if warranted.[1]

The records disclose that on October 7, 1989, respondent Salas was appointed by the PAGCOR Chairman as Internal Security Staff (member and assigned to the casino at the Manila Pavilion Hotel. However, his employment was terminated by the Board of DirectorPAGCOR on December 3, 1991, allegedly for loss of confidence, after a covert investigation conducted by the Intelligence DivisionPAGCOR. The summary of intelligence information claimed that respondent was allegedly engaged in proxy betting as detailed inaffidavits purportedly executed by two customers of PAGCOR who claimed that they were used as gunners on different occasionsrespondent. The two polygraph tests taken by the latter also yielded corroborative and unfavorable results.

On December 23, 1991, respondent Salas submitted a letter of appeal to the Chairman and the Board of Directors of PAGCOR, requestreinvestigation of the case since he was not given an opportunity to be heard, but the same was denied. On February 17, 1992appealed to the Merit Systems Protection Board (MSPB) which denied the appeal on the ground that, as a confidential employ

respondent was not dismissed from the service but his term of office merely expired. On appeal, the CSC issued Resolution No. 92-1which affirmed the decision of the MSPB.[2]

Respondent Salas initially went to this Court on a petition for certiorari assailing the propriety of the questioned CSC resolution. Howen a resolution dated August 15, 1995,[3] the case was referred to the Court of Appeals pursuant to Revised Administrative Circular No. 1

which took effect on June 1, 1995.

On September 14, 1995, the court of Appeals rendered its questioned decision with the finding that herein respondent Salas is nconfidential employee, hence he may not be dismissed on the ground of loss of confidence. In so ruling, the appellate court applied"proximity rule" enunciated in the case of Griño, et al. vs. Civil Service Commission, et al.[4]. It likewise held that Section 16 of PresidenDecree No. 1869 has been superseded and repealed by Section 2(1), Article IX-B of the 1987 Constitution.

Hence this appeal, which is premised on and calls for the resolution of the sole determinative issue of whether or not respondent Salasconfidential employee.

Petitioners aver that respondent Salas, as a member of the Internal Security Staff of PAGCOR, is a confidential employee for sevreasons, viz.:

(1) Presidential Decree No. 1869 which created the Philippine Amusement and Gaming Corporation expressly provides under Sectionthereof that all employees of the casinos and related services shall be classified as confidential appointees;

(2) In the case of the Philippine Amusement and Gaming Corporation vs. Court of Appeals, et al.,[5] The Supreme Court has classPAGCOR employees as confidential appointees;

(3) CSC Resolution No. 91-830, dated July 11, 1991, has declared employees in casinos and related services as confidential appointee

operation of law; and

(4) Based on his functions as a member of the ISS, private respondent occupies a confidential position.

Whence, according to petitioners, respondent Salas was not dismissed from the service but, instead, his term of office had expired. Tadditionally contend that the Court of Appeals erred in applying the "proximity rule" because even if Salas occupied one of the lowest run the organizational ladder of PAGCOR, he performed the functions of one of the most sensitive positions in the corporation.

On the other hand, respondent Salas argues that it is the actual nature of an employee's functions, and not his designation or title, whdetermines whether or not a position is primarily confidential, and that while Presidential Decree No. 1869 may have declared all PAGCemployees to be confidential appointees, such executive pronouncement may be considered as a mere initial determination of classification of positions which is not conclusive in case of conflict, in light of the ruling enunciated in Tria vs. Sto. Tomas, et al.[6]



We find no merit in the petition and consequently hold that the same should be, as it is hereby, denied.

Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant to the provisions of Section 16(e) of Republic Act No. 2260 (CService Act of 1959), which was then in force when Presidential Decree No. 1869 creating the Philippine Amusement and GamCorporation was passed, provided that "upon recommendation of the Commissioner, the President may declare a position as podetermining, primarily confidential, or highly technical in nature." It appears that Section 16 of Presidential Decree No. 1869 predicated thereon, with the text thereof providing as follows:

"All positions in the corporation, whether technical, administrative, professional or managerial are exempt from the provisions of the Service Law, rules and regulations, and shall be governed only by the personnel management policies set by the Board of Directors.

employees of the casinos and related services shall be classified as 'confidential' appointees."

On the strength of this statutory declaration, petitioner PAGCOR terminated the services of respondent Salas for lack of confidence aftesupposedly found that the latter was engaged in proxy betting. In upholding the dismissal of respondent Salas, the CSC ruled that hconsidered a confidential employee by operation of law, hence there is no act of dismissal to speak of but a mere expiration oconfidential employee's term of office, such that a complaint for illegal dismissal will not prosper in this case for lack of legal basis.

n reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section 16 of Presidential Decree No. 1869 maonger be applied in the case at bar because the same is deemed to have been repealed in its entirety by Section 2(1), Article IX-B of

1987 Constitution.[7] This is not completely correct. On this point, we approve the more logical interpretation advanced by the CSC toeffect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has beamended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292 (Administrative Code of 1987)."

However, the same cannot be said with respect to the last portion of Section 16 which provides that "all employees of the casino arelated services shall be classified as 'confidential appointees.'" While such executive declaration emanated merely from the provisionSection 2, Rule XX of the implementing rules of the Civil Service Act of 1959, the power to declare a position as policy-determinprimarily confidential or highly technical as defined therein has subsequently been codified and incorporated in Section 12(9), Book VExecutive Order No. 292 or the Administrative Code of 1987.[8] This later enactment only serves to bolster the validity of the categorizamade under Section 16 of Presidential Decree No. 1869. Be that as it may, such classification is not absolute and all-encompassing.

Prior to the passage of the aforestated Civil Service Act of 1959, there were two recognized instances when a position may be consideprimarily confidential: Firstly, when the President, upon recommendation of the Commissioner of Civil Service, has declared the positiobe primarily confidential; and, secondly in the absence of such declaration, when by the nature of the functions of the office there ex"close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassment or freedfrom misgivings of betrayals of personal trust or confidential matters of state.[9]

At first glance, it would seem that the instant case falls under the first category by virtue of the express mandate under Section 1Presidential Decree No. 1869. An in-depth analysis, however, of the second category evinces otherwise.

When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided that "the non-competitive or unclassified sershall be composed of positions expressly declared by law to be in the non-competitive or unclassified service or those which are podetermining, primarily confidential, or highly technical in nature." In the case of Piñero, et al. vs. Hechanova, et al.,[10] the Court oblwith a short discourse there on how the phrase "in nature" came to find its way into the law, thus:

"The change from the original wording of the bill (expressly declared by law x x x to be policy-determining, etc.) to that finally approved enacted ('or which are policy-determining, etc. in nature') came about because of the observations of Senator Tañada, that as originworded the proposed bill gave Congress power to declare by fiat of law a certain position as primarily confidential or policy-determinwhich should not be the case. The Senator urged that since the Constitution speaks of positions which are 'primarily confidential, po

determining, or highly technical in nature', it is not within the power of Congress to declare what positions are primarily confidentiapolicy-determining. 'It is the nature alone of the position that determines whether it is policy -determining or primarily confidential.' Hethe Senator further observed, the matter should be left to the 'proper implementation of the laws, depending upon the nature of position to be filled', and if the position is 'highly confidential' then the President and the Civil Service Commissioner must implementaw.

To a question of Senator Tolentino, 'But in positions that involved both confidential matters and matters which are routine, x x x whgoing to determine whether it is primarily confidential?' Senator Tañada replied:

SENATOR TAÑADA: Well, at the first instance, it is the appointing power that determines that: the nature of the position. In case of conthen it is the Court that determines whether the position is primarily confidential or not" (Italics in the original text).



Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is the nature of the position which finally determiwhether a position is primarily confidential, policy-determining or highly technical. And the court in the aforecited case explicitly decrthat executive pronouncements, such as Presidential Decree No. 1869, can be no more than initial determinations that are not conclusivcase of conflict. It must be so, or else it would then lie within the discretion of the Chief Executive to deny to any officer, by executive fthe protection of Section 4, Article XII (now Section 2[3], Article IX-B) of the Constitution.[11] In other words, Section 16 of PresidenDecree No. 1869 cannot be given a literally stringent application without compromising the constitutionally protected right of an emploto security of tenure.

The doctrinal ruling enunciated in Piñero finds support in the 1935 Constitution and was reaffirmed in the 1973 Constitution, as well athe implementing rules of Presidential Decree No. 807, or the Civil Service Decree of the Philippines.[12] It may well be observed that b

the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-B thereof, that "appointments in the Civil Service, excepto those which are policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit fitness, to be determined as far as practicable by competitive examination." Corollarily, Section 5 of Republic Act No. 2260 states that non-competitive or unclassified service shall be composed of positions expressly declared by law to be in the non-competitiveunclassified service or those which are policy-determining, primarily confidential, or highly technical in nature." Likewise, Section 1 ofGeneral Rules in the implementing rules of Presidential Decree No. 807 states that "appointments in the Civil Service, except as to thwhich are the policy-determining, primarily confidential, or highly technical in nature, shall be made only according to merit and fitnesbe determined as far as practicable by competitive examination." Let it here be emphasized, as we have accordingly italicized them, these fundamental laws and legislative or executive enactments all utilized the phrase "in nature" to describe the character of the positbeing classified.

The question that may now be asked is whether the Piñero doctrine -- to the effect that notwithstanding any statutory classification tocontrary, it is still the nature of the position, as may be ascertained by the court in case of conflict, which finally determines whethe

position is primarily confidential, policy-determining or highly technical -- is still controlling with the advent of the 1987 Constitution the Administrative Code of 1987,[13] Book V of which deals specifically with the Civil Service Commission, considering that from these laenactments, in defining positions which are policy-determining, primarily confidential or highly technical, the phrase "in nature" wdeleted.[14]

We rule in the affirmative. The matter was clarified and extensively discussed during the deliberations in the plenary session of the 1Constitutional Commission on the Civil Service provisions, to wit:

"MR. FOZ. Which department of government has the power or authority to determine whether a position is policy-determining or primconfidential or highly technical?

FR. BERNAS: The initial decision is made by the legislative body or by the executive department, but the final decision is done by the co

The Supreme Court has constantly held that whether or not a position is policy-determining, primarily confidential or highly technical, determined not by the title but by the nature of the task that is entrusted to it. For instance, we might have a case where a positiocreated requiring that the holder of that position should be a member of the Bar and the law classifies this position as highly technHowever, the Supreme Court has said before that a position which requires mere membership in the Bar is not a highly technical positSince the term 'highly technical' means something beyond the ordinary requirements of the profession, it is always a question of fact.

MR. FOZ. Does not Commissioner Bernas agree that the general rule should be that the merit system or the competitive system shoulupheld?

FR. BERNAS. I agree that that it should be the general rule; that is why we are putting this as an exception.

MR. FOZ. The declaration that certain positions are policy-determining, primarily confidential or highly technical has been the sourcpractices which amount to the spoils system.

FR. BERNAS. The Supreme Court has always said that, but if the law of the administrative agency says that a position is primconfidential when in fact it is not, we can always challenge that in court. It is not enough that the law calls it primarily confidential to mt such; it is the nature of the duties which makes a position primarily confidential.

MR. FOZ. The effect of a declaration that a position is policy-determining, primarily confidential or highly technical — as an exceptionto take it away from the usual rules and provisions of the Civil Service Law and to place it in a class by itself so that it can avail itsecertain privileges not available to the ordinary run of government employees and officers.

FR. BERNAS. As I have already said, this classification does not do away with the requirement of merit and fitness. All it says is that thare certain positions which should not be determined by competitive examination.



For instance, I have just mentioned a position in the Atomic Energy Commission. Shall we require a physicist to undergo a competexamination before appointment? Or a confidential secretary or any position in policy-determining administrative bodies, for that matThere are other ways of determining merit and fitness than competitive examination. This is not a denial of the requirement of merit fitness" (Italics supplied).[15]

t is thus clearly deducible, if not altogether apparent, that the primary purpose of the framers of the 1987 Constitution in providing fordeclaration of a position as policy-determining, primarily confidential or highly technical is to exempt these categories from competiexamination as a means for determining merit and fitness. It must be stressed further that these positions are covered by securittenure, although they are considered non-competitive only in the sense that appointees thereto do not have to undergo competiexaminations for purposes of determining merit and fitness.

n fact, the CSC itself ascribes to this view as may be gleaned from its questioned resolution wherein it stated that "the declaration oposition is primarily confidential if at all, merely exempts the position from the civil service eligibility requirement." Accordingly, the Piñdoctrine continues to be applicable up to the present and is hereby maintained. Such being the case, the submission that PAGemployees have been declared confidential appointees by operation of law under the bare authority of CSC Resolution No. 91-830 musrejected.

We likewise find that in holding that herein private respondent is not a confidential employee, respondent Court of Appeals correapplied the "proximity rule" enunciated in the early but still authoritative case of De los Santos vs. Mallare, et al.,[16] w hich held that:

"Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primaconfidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily cntimacy which ensures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trus

confidential matters of state. x x x" (Emphasis supplied).

This was reiterated in Piñero, et al. vs. Hechanova, et al., supra, the facts of which are substantially similar to the case at bar, involving did employees occupying positions in various capacities in the Port Patrol Division of the Bureau of Customs. The Court there held thatmere fact that the members of the Port Patrol Division are part of the Customs police force is not in itself a sufficient indication that thpositions are primarily confidential. After quoting the foregoing passage from De los Santos, it trenchantly declared:

"As previously pointed out, there are no proven facts to show that there is any such close in timacy and trust between the appointing poand the appellees as would support a finding that confidence was the primary reason for the existence of the positions held by them ortheir appointment thereto. Certainly, it is extremely improbable that the service demands any such closed trust and intimate relabetween the appointing official and, not one or two members alone but the entire Customs patrol (Harbor Police) force, so that emember thereof can be said to hold 'primarily confidential' posts". (Stress supplied).

t can thus be safely determined therefrom that the occupant of a particular position could be considered a confidential employee if predominant reason why he was chosen by the appointing authority was, to repeat, the latter's belief that he can share a close intimrelationship with the occupant which ensures freedom of discussion, without fear of embarrassment or misgivings of possible betrayapersonal trust or confidential matters of state. Withal, where the position occupied is remote from that of the appointing authority,element of trust between them is no longer predominant.[17]

Several factors lead to the conclusion that private respondent does not enjoy such "close intimacy" with the appointing authorityPAGCOR which would otherwise place him in the category of a confidential employee, to wit:

1. As an Internal Security Staff member, private respondent routinely —

a. performs duty assignments at the gaming and/or non-gaming areas to prevent irregularities, misbehavior, illegal transactions

other anomalous activities among the employees and customers,

b. reports unusual incidents and related observations/information in accordance with established procedures for infractions/mistacommitted on the table and in other areas;

c. coordinates with CCTV and/or external security as necessary for the prevention, documentation or suppression of any unwanncidents at the gaming and non-gaming areas;

d. acts as witness/representative of Security Department during chips inventory, refills, yields, card shuffling and final shuffling;

e. performs escort functions during the delivery of table capital boxes, refills and shoe boxes to the respective tables, or during tranof yields to Treasury.[18]



Based on the nature of such functions of herein private respondent and as found by respondent Court of Appeals, while it may be said honesty and integrity are primary considerations in his appointment as a member of the ISS, his position does not involve "such clntimacy" between him and the appointing authority, that is, the Chairman of PAGCOR, as would ensure "freedom from misgiving

betrayals of personal trust."[19]

2. Although appointed by the Chairman, ISS members do not directly report to the Office of the Chairman in the performance of tofficial duties. An ISS members is subject to the control and supervision of an Area Supervisor who, in turn, only implements the directof the Branch Chief Security Officer. The latter is himself answerable to the Chairman and the Board of Directors. Obviously, as the lown the chain of command, private respondent does not enjoy that "primarily close intimacy" which characterizes a confidential employee

3. The position of an ISS member belongs to the bottom level of the salary scale of the corporation, being in Pay Class 2 level only, whethe highest level is Pay Class 12.

Taking into consideration the nature of his functions, his organizational ranking and his compensation level, it is obviously beyond debthat private respondent cannot be considered a confidential employee. As set out in the job description of his position, one is struck byordinary, routinary and quotidian character of his duties and functions. Moreover, the modest rank and fungible nature of the posioccupied by private respondent is underscored by the fact that the salary attached to it is a meager P2,200.00 a month. There thus appnothing to suggest that private respondents's position was "highly" or much less, "primarily" confidential in nature. The fact tsometimes, private respondent may handle ordinarily "confidential matters" or papers which are somewhat confidential in nature doessuffice to characterize his position as primarily confidential.[20]

n addition, the allegation of petitioners that PAGCOR employees have been declared to be confidential appointees in the case of PhilipAmusement and Gaming Corporation vs. Court of Appeals, et al., ante, is misleading. What was there stated is as follows:

"The record shows that the separation of the private respondent was done in accordance with PD 1869, which provides that the employof the PAGCOR hold confidential positions. Montoya is not assailing the validity of that law. The act that he is questioning is what he the arbitrary manner of his dismissal thereunder that he avers entitled her to damages under the Civil Code." (Italics ours).

Thus, the aforecited case was decided on the uncontested assumption that the private respondent therein was a confidential employeethe simple reason that the propriety of Section 16 of Presidential Decree No. 1869 was never controverted nor raised as an issue therThat decree was mentioned merely in connection with its provision that PAGCOR employees hold confidential positions. Evidetherefore, it cannot be considered as controlling in the case at bar. Even the fact that a statute has been accepted as valid in cases whts validity was not challenged does not preclude the court from later passing upon its constitutionality in an appropriate cause where

question is squarely and properly raised. Such circumstances merely reinforce the presumption of constitutionality of the law.[21]

WHEREFORE, the impugned judgment of respondent Court of Appeals is hereby AFFIRMED in toto.

SO ORDERED.EN BANC

[G. R. No. 133132. January 25, 2000]

ALEXIS C. CANONIZADO, EDGAR DULA TORRES, and ROGELIO A. PUREZA, petitioners, vs. HON. ALEXANDER P. AGUIRRE, as ExecuSecretary, HON. EMILIA T. BONCODIN, as Secretary of Budget and Management, JOSE PERCIVAL L. ADIONG, ROMEO L. CAIRME VIRGINIA U. CRISTOBAL, respondents. ALEX

D E C I S I O N

GONZAGA_REYES, J.:

The central issue posed before this Court in the present case is the constitutionality of Republic Act No. 8551 (RA 8551), otherwise knoas the "Philippine National Police Reform and Reorganization Act of 1998,"[1] by virtue of which petitioners herein, who were all membof the National Police Commission (NAPOLCOM), were separated from office. Petitioners claim that such law violates their constitutionguaranteed right to security of tenure. Scä juris

The NAPOLCOM was originally created under Republic Act No. 6975 (RA 6975), entitled "An Act Establishing The Philippine National PoUnder A Reorganized Department Of The Interior And Local Government, And For Other Purposes." Under RA 6975, the members of NAPOLCOM were petitioners Edgar Dula Torres, Alexis C. Canonizado, Rogelio A. Pureza and respondent Jose Percival L. Adiong. Dula Towas first appointed to the NAPOLCOM on January 8, 1991 for a six year term. He was re-appointed on January 23, 1997 for anotheryears. Canonizado was appointed on January 25, 1993 to serve the unexpired term of another Commissioner which ended on December

1995. On August 23, 1995, Canonizado was re-appointed for another six years. Pureza was appointed on January 2, 1997 for a similar te



of six years. Respondent Adiong’s appointment to the NAPOLCOM was issued on July 23, 1996. None of their terms had expired at the tthe amendatory law was passed.[2]

On March 6, 1998, RA 8551 took effect; it declared that the terms of the current Commissioners were deemed as expired uponeffectivity. Pursuant thereto, President Ramos appointed Romeo L. Cairme on March 11, 1998 as a member of the NAPOLCOM for a fuyear term. On the same date, Adiong, was given a term extension of two years since he had served less than two years of his previous teCairme and Adiong both took their oaths of office on April 6, 1998.[3] Completing the membership of the NAPOLCOM are Leo S. Magahand Cleofe M. Factoran, who were appointed by President Estrada on June 30, 1998 and who took their oaths of office on July 2, 1998Jurisä

According to petitioners, sections 4 and 8 of RA 8551 are unconstitutional. Section 4, amending section 13 of Republic Act No. 69provides -

SEC. 13. Creation and Composition. – A National Police Commission, hereinafter referred to as the Commission, is hereby created forpurpose of effectively discharging the functions prescribed in the Constitution and provided in this Act. The Commission shall be an ageattached to the Department for policy and program coordination. It shall be composed of a Chairperson, four (4) regular Commissionand the Chief of the PNP as ex-officio member. Three (3) of the regular Commissioners shall come from the civilian sector who are neitactive nor former members of the police or military, one (1) of whom shall be designated as vice chairperson by the President. The fouregular Commissioner shall come from the law enforcement sector either active or retired: Provided, That an active member of a enforcement agency shall be considered resigned from said agency once appointed to the Commission: Provided further, That at least (1) of the Commissioners shall be a woman. The Secretary of the Department shall be the ex-officio Chairperson of the Commission, wthe Vice Chairperson shall act as the executive officer of the Commission. SupÓ rema

Meanwhile, section 8 states that -

Upon the effectivity of this Act, the terms of office of the current Commissioners are deemed expired which shall constitute a bar to treappointment or an extension of their terms in the Commission except for current Commissioners who have served less than two (2) yof their terms of office who may be appointed by the President for a maximum term of two (2) years.

Petitioners argue that their removal from office by virtue of section 8 of RA 8551 violates their security of tenure. Scsä daad

t is beyond dispute that petitioners herein are members of the civil service, which embraces all branches, subdivisions, instrumentaliand agencies of the Government, including government-owned or controlled corporations with original charters.[5] As such, they cannoremoved or suspended from office, except for cause provided by law.[6] The phrase "except for cause provided by law" refers t o "… reaswhich the law and sound public policy recognize as sufficient warrant for removal, that is, legal cause, and not merely causes which

appointing power in the exercise of discretion may deem sufficient."[7]

Public respondents insist that the express declaration in section 8 of RA 8551 that the terms of petitioners’ offices are deemed expi

discloses the legislative intent to impliedly abolish the NAPOLCOM created under RA 6975 pursuant to a bona fide reorganizationsupport of their theory, public respondents cite the various changes introduced by RA 8551 in the functions, composition and charactethe NAPOLCOM as proof of Congress’ intention to abolish the body created under RA 6975 in order to replace it with a new NAPO LCwhich is more civilian in nature, in compliance with the constitutional mandate. Petitioners’ posit the theory that the abolition

petitioners’ offices was a result of a reorganization of the NAPOLCOM allegedly effected by RA 8551.*8+ Sdaad

The creation and abolition of public offices is primarily a legislative function.[9] It is acknowledged that Congress may abolish any officcreates without impairing the officer’s right to continue in the position held*10+ and that such power may be exercised for v arious reassuch as the lack of funds[11] or in the interest of economy.[12] However, in order for the abolition to be valid, it must be made in gfaith, not for political or personal reasons, or in order to circumvent the constitutional security of tenure of civil service employees.

SdaaÓ miso

An abolition of office connotes an intention to do away with such office wholly and permanently, as the word "abolished" denotes.Where one office is abolished and replaced with another office vested with similar functions, the abolition is a legal nullity. Thus, in UBoard of Regents v. Rasul[15] we said:

t is true that a valid and bona fide abolition of an office denies to the incumbent the right to security of tenure. [De la Lanna v. Alba, 1SCRA 294 (1982)] However, in this case, the renaming and restructuring of the PGH and its component units cannot give rise to a valid bona fide abolition of the position of PGH Director. This is because where the abolished office and the offices created in its place hsimilar functions, the abolition lacks good faith. [Jose L. Guerrero v. Hon. Antonio V. Arizabal, G.R. No. 81928, June 4, 1990, 186 SCRA (1990)] We hereby apply the principle enunciated in Cesar Z. Dario vs. Hon. Salvador M. Mison [176 SCRA 84 (1989)] that abolition whmerely changes the nomenclature of positions is invalid and does not result in the removal of the incumbent. Scncä m



The above notwithstanding, and assuming that the abolition of the position of the PGH Director and the creation of a UP-PGH MedCenter Director are valid, the removal of the incumbent is still not justified for the reason that the duties and functions o f the two positare basically the same…. (underscoring supplied)

This was also our ruling in Guerrero v. Arizabal,[16] wherein we declared that the substantial identity in the functions between the toffices was indicia of bad faith in the removal of petitioner pursuant to a reorganization.

We come now to the case at bench. The question that must first be resolved is whether or not petitioners were removed by virtue of a vabolition of their office by Congress. More specifically, whether the changes effected by RA 8551 in reference to the NAPOLCOM weresubstantial as to effectively create a completely new office in contemplation of the law. In answer to this query, the case of Mayo

Macaraig[17] is squarely in point. NcmmisÓ

n that case, the petitioners assailed the constitutionality of Republic Act No. 6715[18] insofar as it declared vacant the positions of Commissioners, Executive Labor Arbiters and Labor Arbiters of the National Labor Relations Commission and provided for the removathe incumbents upon the appointment and qualification of their successors.[19] The Court held that the removal of petitioners unconstitutional since Republic Act No. 6715 did not expressly or impliedly abolish the offices of petitioners, there being no irreconcilanconsistency in the nature, duties and functions of the petitioners’ offices under the old law and the new law. Thus:

Abolition of an office is obviously not the same as the declaration that that office is vacant. While it is undoubtedly a prerogative of egislature to abolish certain offices, it can not be conceded the power to simply pronounce those offices vacant and thereby effecti

remove the occupants or holders thereof from the civil service. Such an act would constitute, on its face, an infringement of constitutional guarantee of security of tenure, and will have to be struck down on that account. It can not be justified by the profes"need to professionalize the higher levels of officialdom invested with adjudicatory powers and functions, and to upgrade t

qualifications, ranks, and salaries or emoluments. Oldmisâ o

This is precisely what RA 8851 seeks to do - declare the offices of petitioners vacant, by declaring that "the terms of office of the currCommissioners are deemed expired," thereby removing petitioners herein from the civil service. Congress may only be conceded power if it is done pursuant to a bona fide abolition of the NAPOLCOM.

RA 8551 did not expressly abolish petitioners’ positions. In order to determine whether there has been an implied abolition, it beconecessary to examine the changes introduced by the new law in the nature, composition and functions of the NAPOLCOM. Manikanä

Under RA 6975, the NAPOLCOM was described as a collegial body within the Department of the Interior and Local Government,(Department) whereas under RA 8551 it is made "an agency attached to the Department for policy and program coordination."Contrary to what public respondents would have us believe, this does not result in the creation of an entirely new office. In Mayor,

NLRC, prior to the passage of the amendatory law, was also considered an integral part of the Department of Labor and Employment.6715, however, changed that by declaring that it shall instead "..be attached to the Department of Labor and Employment for progrcoordination only…." making it a more autonomous body. The Court held that this change in the NLRC’s nature was not sufficient to jus

a conclusion that the new law abolished the offices of the labor commissioners. Maniksâ

Another amendment pointed out by public respondents is the revision of the NAPOLCOM’s composition. RA 8551 expanded

membership of the NAPOLCOM from four to five Commissioners by adding the Chief of the PNP as an ex-officio member. In addition,new law provided that three of the regular Commissioners shall come from the civilian sector who are neither active nor former membof the police or military, and that the fourth regular Commissioner shall come from the law enforcement sector either active or retiFurthermore, it is required that at least one of the Commissioners shall be a woman.[22] Again, as we held in Mayor, such revisions doconstitute such essential changes in the nature of the NAPOLCOM as to result in an implied abolition of such office. It will be noted thatorganizational structure of the NAPOLCOM, as provided in section 20 of RA 6975 as amended by section 10 of RA 8551,[23] remessentially the same and that, except for the addition of the PNP Chief as ex-officio member, the composition of the NAPOLCOM is a

substantially identical under the two laws. Also, under both laws, the Secretary of the Department shall act as the ex-officio Chairmathe Commission and the Vice-Chairman shall be one of the Commissioners designated by the President.[24]

Finally, the powers and duties of the NAPOLCOM remain basically unchanged by the amendments. Under RA 6975, the Commission hasfollowing powers and functions: Sppedä jo

(a) Exercise administrative control over the Philippine National Police;

(b) Advise the President on all matters involving police functions and administration;

(c) Foster and develop policies and promulgate rules and regulations, standards and procedures to improve police services based on soprofessional concepts and principles;



(d) Examine and audit, and thereafter establish the standards for such purposes on a continuing basis, the performance, activities, facilities of all police agencies throughout the country;

(e) Prepare a police manual prescribing rules and regulations for efficient organization, administration, and operation, includrecruitment, selection, promotion and retirement;

(f) Establish a system of uniform crime reporting; Joä spped

(g) Conduct surveys and compile statistical data for the proper evaluation of the efficiency and effectiveness of all police units in country;

(h) Render to the President and to Congress an annual report on its activities and accomplishments during the thirty (30) days after the of the calendar year, which shall include an appraisal of the conditions obtaining in the organization and administration of police agenciethe municipalities, cities and provinces throughout the country, and recommendation for appropriate remedial legislation;

(i) Approve or modify plans and programs on education and training, logistical requirements, communications, records, informasystems, crime laboratory, crime prevention and crime reporting; Sppedâ

(j) Affirm reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion or dismissal from service imposed upon members of the Philippine National Police by the Chief of the Philippine National Police;

(k) Exercise appellate jurisdiction through the regional appellate boards over administrative cases against policemen and over decisionsclaims for police benefits;

(l) Recommend to the President, through the Secretary, within sixty (60) days before the commencement of each calendar year, a crprevention;

(m) Prescribe minimum standards for arms, equipment, and uniforms and, after consultation with the Philippine Heraldry Commission,nsignia of ranks, awards and medals of honor;

(n) Issue subpoena and subpoena duces tecum in matters pertaining to the discharge of its own powers and duties, and designate wamong its personnel can issue such processes and administer oaths in connection therewith; and MisÓ spped

(o) Perform such other functions necessary to carry out the provisions of this Act and as the President may direct.

Meanwhile, the NAPOLCOM’s functions under section 5 of RA 8551 are:

a) Exercise administrative control and operational supervision over the Philippine National Police which shall mean the power to:

1) Develop policies and promulgate a police manual prescribing rules and regulations for efficient organization, administration, operation, including criteria for manpower allocation, distribution and deployment, recruitment, selection , promotion, and retiremenpersonnel and the conduct of qualifying entrance and promotional examinations for uniformed members; MisÓ sc

2) Examine and audit, and thereafter establish the standards for such purposes on a continuing basis, the performance, activities facilities of all police agencies throughout the country;

3) Establish a system of uniform crime reporting;

4) Conduct an annual self-report survey and compile statistical date for the accurate assessment of the crime situation and the proevaluation of the efficiency and effectiveness of all police units in the country;

5) Approve or modify plans and programs on education and training, logistical requirements, communications, records, informatsystems, crime laboratory, crime prevention and crime reporting;

6) Affirm, reverse or modify, through the National Appellate Board, personnel disciplinary actions involving demotion or dismissal from service imposed upon members of the Philippine National Police by the Chief of the Philippine National Police; ScmisÓ

7) Exercise appellate jurisdiction through the regional appellate boards over administrative cases against policemen and over decisionsclaims for police benefits;



8) Prescribe minimum standards for arms, equipment, and uniforms and after consultation with the Philippine Heraldry Commission,nsignia of ranks, awards, and medals of honor. Within ninety (90) days from the effectivity of this Act, the standards of the uniform

personnel of the PNP must be revised which should be clearly distinct from the military and reflective of the civilian character of the pol

9) Issue subpoena and subpoena duces tecum in matters pertaining to the discharge of its own powers and duties, and designate wamong its personnel can issue such processes and administer oaths in connection therewith; Scä

10) Inspect and assess the compliance of the PNP on the established criteria for manpower allocation, distribution, and deployment their impact on the community and the crime situation, and therewith formulate appropriate guidelines for maximization of resources effective utilization of the PNP personnel;

11) Monitor the performance of the local chief executives as deputies of the Commission; and

12) Monitor and investigate police anomalies and irregularities.

b) Advise the President on all matters involving police functions and administration;

c) Render to the President and to the Congress an annual report on its activities and accomplishments during the thirty (30) days after end of the calendar year, which shall include an appraisal of the conditions obtaining in the organization and administration of poagencies in the municipalities, cities and provinces throughout the country, and recommendations for appropriate remedial legislation;

d) Recommend to the President, through the Secretary, within sixty (60) days before the commencement of each calendar year, a crprevention program; andxä law

e) Perform such other functions necessary to carry out the provisions of this Act and as the President may direct."

Clearly, the NAPOLCOM continues to exercise substantially the same administrative, supervisory, rule-making, advisory and adjudicafunctions. ScÓ lex

Public respondents argue that the fact that the NAPOLCOM is now vested with administrative control and operational supervision over PNP, whereas under RA 6975 it only exercised administrative control should be construed as evidence of legislative intent to abolish soffice.[25] This contention is bereft of merit. Control means "the power of an officer to alter or modify or set aside what a subordinofficer had done in the performance of his duties and to substitute the judgment of the former for the that of the latter."[26] On the othand, to supervise is to oversee, to have oversight of, to superintend the execution of or the performance of a thing, or the movementwork of a person, to inspect with authority; it is the power or authority of an officer to see that subordinate officers perform t

duties.[27] Thus, the power of control necessarily encompasses the power of supervision and adding the phrase "operational supervisunder the powers of the NAPOLCOM would not bring about a substantial change in its functions so as to arrive at the conclusion thacompletely new office has been created.

Public respondents would have this Court believe that RA 8551 reorganized the NAPOLCOM resulting in the abolition of petitioners’ of fWe hold that there has been absolutely no attempt by Congress to effect such a reorganization. Sclawä

Reorganization takes place when there is an alteration of the existing structure of government offices or units therein, including the linecontrol, authority and responsibility between them.[28] It involves a reduction of personnel, consolidation of offices, or ab olition thereoreason of economy or redundancy of functions.*29+ Naturally, it may result in the loss of one’s position through removal or a bolition ooffice. However, for a reorganization to be valid, it must also pass the test of good faith, laid down in Dario v. Mison:[30]

...As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more effici

n that event, no dismissal (in case of a dismissal) or separation actually occurs because the position itself ceases to exist. And in that casecurity of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removadone for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place awhatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclaturepositions, or where claims of economy are belied by the existence of ample funds. Korteä

t is exceedingly apparent to this Court that RA 8551 effected a reorganization of the PNP, not of the NAPOLCOM. They are two separand distinct bodies, with one having supervision and control over the other. In fact, it is the NAPOLCOM that is given the duty of submita proposed reorganization plan of the PNP to Congress.[31] As mentioned earlier, the basic structure of the NAPOLCOM has been preserby the amendatory law. There has been no revision in its lines of control, authority and responsibility, neither has there been a reductiots membership, nor a consolidation or abolition of the offices constituting the same. Adding the Chief of the PNP as an ex-officio mem

of the Commission does not result in a reorganization.



No bona fide reorganization of the NAPOLCOM having been mandated by Congress, RA 8551, insofar as it declares the terms of of fice ofncumbent Commissioners, petitioners herein, as expired and resulting in their removal from office, removes civil service employees f

office without legal cause and must therefore be struck down for being constitutionally infirm. SdaÓ adsc

Petitioners are thus entitled to be reinstated to office. It is of no moment that there are now n ew appointees to the NAPOLCOM. It is a wentrenched principle that when a regular government employee is illegally dismissed, his position never became vacant under the law he is considered as not having left his office. The new appointments made in order to replace petitioners are not valid.[32]

At this juncture, we note that it is alleged by public respondents that on June 30, 1998, Canonizado accepted an appointment by PresidEstrada as the Inspector General of Internal Affairs Services (IAS) of the PNP, pursuant to sections 40 and 41 of RA 8551 and that he took

oath of office before the President on July 7, 1998. However, this is a mere allegation on the part of public respondents of which this Ccannot take judicial notice. Furthermore, this issue has not been fully ventilated in the pleadings of the parties. Therefore, such allegatcannot be taken into consideration by this Court in passing upon the issues in the present case. Missdaa

Petitioners also assail the constitutionality of section 4 of RA 8551 insofar as it limits the law enforcement sector to only one position onCommission and categorizes the police as being part of the law enforcement sector despite section 6 of Article XVI of the Constitutwhich provides that the police force shall be civilian in character. Moreover, it is asserted by petitioners that the requirement in sectiothat one of the Commissioners shall be a woman has no rational basis and is therefore discriminatory. They claim that it amounts to cegislation and amounts to an undue restriction upon the appointing power of the President as provided under section 16 of Article VI

the Constitution.[33]

n view of our ruling upon the unconstitutionality of petitioners’ removal from office by v irtue of section 8 of RA 8551, we find that therno longer any need to pass upon these remaining constitutional questions. It is beyond doubt that the legislature has the power to prov

for the composition of the NAPOLCOM since it created such body. Besides, these questions go into the very wisdom of the law, unquestionably lie beyond the normal prerogatives of the Court to pass upon.[34] slxä mis

WHEREFORE, we grant the petition, but only to the extent of declaring section 8 of RA 8551 unconstitutional for being in violation of petitioners’ right to security of tenure. The removal from office of petitioners as a result of the application of such uncon stitutiprovision of law and the appointment of new Commissioners in their stead is therefore null and void. Petitioners herein are entitledREINSTATEMENT and to the payment of full backwages to be reckoned from the date they were removed from office.[35]

SO ORDERED. Slxsä

[G.R. No. 119903. August 15, 2000]

HON. RICARDO T. GLORIA, in his capacity as SECRETARY, AND DIRECTOR NILO L. ROSAS in his capacity as REGIONAL DIRECTDEPARTMENT OF EDUCATION, CULTURE AND SPORTS, petitioners, vs. HON. COURT OF APPEALS AND DR. BIENVENIDO A. ICASIArespondents.

D E C I S I O N

PURISIMA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court brought by Secretary and the Director for the National CapRegion of the Department of Education, Culture and Sports (DECS), to question the decision[1] of the Court of Appeals in CA-G.R. SP 35505.

The Court of Appeals found the facts as follows:

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

On October 10, 1994, respondent Secretary Gloria recommended to the President of the Philippines that the petitioner be reassignedSuperintendent of the MIST [Marikina Institute of Science and Technology], to fill up the vacuum created by the retirement oSuperintendent, Mr. Bannaoag F. Lauro, on June 17, 1994.

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

On October 13, 1994, a copy of the recommendation for petitioner’s reassignment, as approved by the President, was transmittedSecretary Gloria to Director Rosas for implementation.



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

Petitioner requested respondent Secretary Gloria to reconsider the reassignment, but the latter denied the request. The petitioprepared a letter dated October 18, 1994 to the President of the Philippines, asking for a reconsideration of his reassignment, furnished a copy of the same to the DECS. However, he subsequently changed his mind and refrained from filing the letter with the Ofof President.

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

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

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

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

On March 28, 1995, it issued its assailed decision; holding as follows:

"WHEREFORE, for lack of a period or any indication that it is only temporary, the reassignment of the petitioner from Schools DivisSuperintendent, Division of City Schools, Quezon City, to Vocational Schools Superintendent of the Marikina Institute of Science Technology pursuant to the Memorandum of Secretary Ricardo T. Gloria to the President of the Philippines dated 10 October 1994

hereby declared to be violative of petitioner’s right to security of tenure, and the respondents are hereby proh ibited from implementhe same.

SO ORDERED."[5]

Petitioners are now before the Court seeking relief from the decision of the appellate court, contending that:

RESPONDENT COURT OF APPEALS HAS ALLOWED ITSELF TO BE INSTRUMENTAL IN PRIVATE RESPONDENT’S CIRCUMVENTION OF PRESIDENTIAL IMMUNITY FROM SUIT BY GIVING DUE COURSE AND GRANTING RELIEFS PRAYED FOR IN A SUIT PURPORTEDLY FIAGAINST PETITIONERS BUT ACTUALLY QUESTIONING AN ACT OF THE PRESIDENT.

I

RESPONDENT COURT OF APPEALS HAS DECIDED A QUESTION OF SUBSTANCE IN A WAY NOT IN ACCORD WITH LAW OR APPLICADECISIONS OF THE SUPREME COURT[6]

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

n taking favorable action on private respondent’s petition for prohibition, the Court of Appeals ratiocinated:

"Notwithstanding the protestations of counsel for the respondents, the reassignment of the petitioner to MIST appears to be indefinite

period is fixed. No objective or purpose, from which the temporariness of the assignment may be inferred, is set. In fact, recommendation of respondent Secretary Gloria to the President that the position of superintendent of MIST ‘will best fit his (petition

qualifications and experience.’ (Exh. ‘C-2’) implies that the proposed reassignment will be indefinite."[7]

Petitioners theorize that the present petition for prohibition is improper because the same attacks an act of the President, in violationthe doctrine of presidential immunity from suit.

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

Petitioners’ submission that the petition of private respondent with the Court of Appeals is improper for failing to show that petitio

constituted themselves into a "court" conducting a "proceeding" and for failing to show that any of the petitioners acted beyond t



jurisdiction in the exercise of their judicial or ministerial functions, is barren of merit. Private respondent has clearly averred thatpetitioners acted with grave abuse of discretion amounting to lack of jurisdiction and/or excess of jurisdiction in reassigning the privrespondent in a way that infringed upon his security of tenure. And petitioners themselves admitted that their questioned act constitutministerial duty, such that they could be subject to charges of insubordination if they did not comply with the presidential order. Whamore, where an administrative department acts with grave abuse of discretion, which is equivalent to a capricious and whimsical exerof judgment, or where the power is exercised in an arbitrary or despotic manner, there is a justification for the courts to set aside administrative determination thus reached.[9]

Petitioners contend that the doctrine enunciated in Bentain vs. Court of Appeals[10] -- that "a reassignment that is indefinite and resulta reduction in rank, status and salary, is in effect, a constructive removal from the service" -- does not apply in the present case for

reassignment in question was merely temporary, lasting only until the appointment of a new Vocational School Superintendent of MIST.

After a careful study, the Court upholds the finding of the respondent court that the reassignment of petitioner to MIST "appears tondefinite". The same can be inferred from the Memorandum[11] of Secretary Gloria for President Fidel V. Ramos to the effect that

reassignment of private respondent will "best fit his qualifications and experience" being "an expert in vocational and technical educatit can thus be gleaned that subject reassignment is more than temporary as the private respondent has been described as fit for

(reassigned) job, being an expert in the field. Besides, there is nothing in the said Memorandum to show that the reassignment of privrespondent is temporary or would only last until a permanent replacement is found as no period is specified or fixed; which fact evincesntention on the part of petitioners to reassign private respondent with no definite period or duration. Such feature of the reassignmen

question is definitely violative of the security of tenure of the private respondent. As held in Bentain:

"Security of tenure is a fundamental and constitutionally guaranteed feature of our civil service. The mantle of its protection extends only to employees removed without cause but also to cases of unconsented transfers which are tantamount to illegal remo

(Department of Education, Culture and Sports vs. Court of Appeals, 183 SCRA 555; Ibanez vs. COMELEC, 19 SCRA 1002; BrillantesGuevarra, 27 SCRA 138).

While a temporary transfer or assignment of personnel is permissible even without the employee’s prior consent, it cannot be done wthe transfer is a preliminary step toward his removal, or is a scheme to lure him away from his permanent position, or designed to indireterminate his service, or force his resignation. Such a transfer would in effect circumvent the provision which safeguards the tenureoffice of those who are in the Civil Service (Sta. Maria vs. Lopez, 31 SCRA 651; Garcia vs. Lejano, 109 Phil. 116)."[12]

Having found the reassignment of private respondent to the MIST to be violative of his security of tenure, the order for his reassignmenthe MIST cannot be countenanced.

WHEREFORE, the petition is hereby DENIED, and the Decision of the Court of Appeals in CA-G.R. SP No. 35505 AFFIRMED.

pronouncement as to costs.

SO ORDERED.[G.R. Nos. 142801-802. July 10, 2001.]

BUKLOD NG KAWANING EIIB, CESAR POSADA, REMEDIOS G. PRINCESA, BENJAMIN KHO, BENIGNO MANGA, LULU MENDOZA, PetitionerHON. EXECUTIVE SECRETARY RONALDO B. ZAMORA, HON. SECRETARY JOSE PARDO, DEPARTMENT OF FINANCE, HON. SECRETBENJAMIN DIOKNO, DEPARTMENT OF BUDGET AND MANAGEMENT, HON. SECRETARY ARTEMIO TUQUERO, DEPARTMENT OF JUSTRespondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

n this petition for certiorari, prohibition and mandamus, petitioners Buklod Ng Kawaning EIIB, Cesar Posada, Remedios Princesa, BenjaKho, Benigno Manga and Lulu Mendoza, for themselves and in behalf of others with whom they share a common or general interest, sthe nullification of Executive Order No. 191 1 and Executive Order No. 223 2 on the ground that they were issued by the Office of President with grave abuse of discretion and in violation of their constitutional right to security of tenure.chanrob1es virtua1 1aw 1ibrar

The facts are undisputed:chanrob1es virtual 1aw library



On June 30, 1987, former President Corazon C. Aquino, issued Executive Order No. 127 3 establishing the Economic Intelligence anvestigation Bureau (EIIB) as part of the structural organization of the Ministry of Finance. 4 The EIIB was designated to perform

following functions:jgc:chanrobles.com.ph

"(a) Receive, gather and evaluate intelligence reports and information and evidence on the nature, modes and extent of illegal activiaffecting the national economy, such as, but not limited to, economic sabotage, smuggling, tax evasion, and dollar-salting, investigatesame and aid in the prosecution of cases;

(b) Coordinate with external agencies in monitoring the financial and economic activities of persons or entities, whether domestiforeign, which may adversely affect national financial interest with the goal of regulating, controlling or preventing said activities;

(c) Provide all intelligence units of operating Bureaus or Offices under the Ministry with the general framework and guidelines in conduct of intelligence and investigating works;

(d) Supervise, monitor and coordinate all the intelligence and investigation operations of the operating Bureaus and Offices under Ministry;

(e) Investigate, hear and file, upon clearance by the Minister, anti-graft and corruption cases against personnel of the Ministry andconstituents units;

(f) Perform such other appropriate functions as may be assigned by the Minister or his deputies." 5

n a desire to achieve harmony of efforts and to prevent possible conflicts among agencies in the course of their anti-smuggling operati

President Aquino issued Memorandum Order No. 225 on March 17, 1989, providing, among others, that the EIIB "shall be the agencprimary responsibility for anti-smuggling operations in all land areas and inland waters and waterways outside the areas of sole jurisdicof the Bureau of Customs." 6

Eleven years after, or on January 7, 2000, President Joseph Estrada issued Executive Order No. 191 entitled "Deactivation of the Econontelligence and Investigation Bureau." 7 Motivated by the fact that "the designated functions of the EIIB are also being performed by

other existing agencies of the government" and that "there is a need to constantly monitor the overlapping of functions" among thagencies, former President Estrada ordered the deactivation of EIIB and the transfer of its functions to the Bureau of Customs and National Bureau of Investigation.

Meanwhile, President Estrada issued Executive Order No. 196 8 creating the Presidential Anti-Smuggling Task Force "Aduana." 9

Then the day feared by the EIIB employees came. On March 29, 2000, President Estrada issued Executive Order No. 223 10 providing tall EIIB personnel occupying positions specified therein shall be deemed separated from the service effective April 30, 2000, pursuant bona fide reorganization resulting to abolition, redundancy, merger, division, or consolidation of positions. 11

Agonizing over the loss of their employment, petitioners now come before this Court invoking our power of judicial review of ExecuOrder Nos. 191 and 223. They anchor their petition on the following arguments:jgc:chanrobles.com.ph

"A

Executive Order Nos. 191 and 223 should be annulled as they are unconstitutional for being violative of Section 2(3), Article IX-B of Philippine Constitution and/or for having been issued with grave abuse of discretion amounting to lack or excess of jurisdiction.

B.

The abolition of the EIIB is a hoax. Similarly, if Executive Order Nos. 191 and 223 are considered to effect a reorganization of the EIIB, sreorganization was made in bad faith.

C.

The President has no authority to abolish the EIIB."cralaw virtua1aw library

Petitioners contend that the issuance of the afore-mentioned executive orders is: (a) a violation of their right to security of tenure;tainted with bad faith as they were not actually intended to make the bureaucracy more efficient but to give way to Task Force "Aduathe functions of which are essentially and substantially the same as that of EIIB; and (c) a usurpation of the power of Congress to decwhether or not to abolish the EIIB.



Arguing in behalf of respondents, the Solicitor General maintains that: (a) the President enjoys the totality of the executive power proviunder Sections 1 and 7, Article VII of the Constitution, thus, he has the authority to issue Executive Order Nos. 191 and 223; (b) the sexecutive orders were issued in the interest of national economy, to avoid duplicity of work and to streamline the functions of bureaucracy; and (c) the EIIB was not "abolished," it was only "deactivated."cralaw virtua1aw library

The petition is bereft of merit.chanrob1es virtua1 1aw 1ibrary

Despite the presence of some procedural flaws in the instant petition, such as, petitioners’ disregard of the hierarchy of courts and the nexhaustion of administrative remedies, we deem it necessary to address the issues. It is in the interest of the State that questions relato the status and existence of a public office be settled without delay. We are not without precedent. In Dario v. Mison, 12 we liber

decreed:jgc:chanrobles.com.ph

"The Court disregards the questions raised as to procedure, failure to exhaust administrative remedies, the standing of certain partiesue, for two reasons, ‘*b+ecause of the demands of public interest, including the need for stability in the public service,’ and because ofserious implications of these cases on the administration of the Philippine civil service and the rights of public servants."cralaw virtuaibrary

At first glance, it seems that the resolution of this case hinges on the question — Does the "deactivation" of EIIB constitute "abolition" ooffice? However, after coming to terms with the prevailing law and jurisprudence, we are certain that the ultimate queries should be —

Does the President have the authority to reorganize the executive department? and, b ) How should the reorganization be carried out?

Surely, there exists a distinction between the words "deactivate" and "abolish." To "deactivate" means to render inactive or ineffectivto break up by discharging or reassigning personnel, 13 while to "abolish" means to do away with, to annul, abrogate or dest

completely. 14 In essence, abolition denotes an intention to do away with the office wholly and permanently. 15 Thus, while in abolitthe office ceases to exist, the same is not true in deactivation where the office continues to exist, albeit remaining dormant or inoperatBe that as it may, deactivation and abolition are both reorganization measures.

The Solicitor General only invokes the above distinctions on the mistaken assumption that the President has no power to abolish an offic

The general rule has always been that the power to abolish a public office is lodged with the legislature. 16 This proceeds from the leprecept that the power to create includes the power to destroy. A public office is either created by the Constitution, by statute, orauthority of law. 17 Thus, except where the office was created by the Constitution itself, it may be abolished by the same legislature tbrought it into existence. 18

The exception, however, is that as far as bureaus, agencies or offices in the executive department are concerned, the President’s powe

control may justify him to inactivate the functions of a particular office, 19 or certain laws may grant him the broad authority to carryreorganization measures. 20 The case in point is Larin v. Executive Secretary. 21 In this case, it was argued that there is no law whempowers the President to reorganize the BIR. In decreeing otherwise, this Court sustained the following legal bathus:jgc:chanrobles.com.ph

"Initially, it is argued that there is no law yet which empowers the President to issue E.O. No. 132 or to reorganize the BIR .

We do not agree.

x x x

Section 48 of R.A. 7645 provides that:chanrob1es virtual 1aw library

‘SECTION 48. Scaling Down and Phase Out of Activities of Agencies Within the Executive Branch. — The heads of departments, bureaus offices and agencies are hereby directed to identify their respective activities which are no longer essential in the delivery of public servand which may be scaled down, phased out or abolished, subject to civil service rules and regulations. . . Actual scaling down, phasing or abolition of the activities shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of the President.’

Said provision clearly mentions the acts of "scaling down, phasing out and abolition" of offices only and does not cover the creatiooffices or transfer of functions. Nevertheless, the act of creating and decentralizing is included in the subsequent provision of Sectionwhich provides that:chanrob1es virtual 1aw library



‘SECTION 62. Unauthorized organizational charges. — Unless otherwise created by law or directed by the President of the Philippinesorganizational unit or changes in key positions in any department or agency shall be authorized in their respective organization structuand be funded from appropriations by this Act.’ (Emphasis ours)

The foregoing provision evidently shows that the President is authorized to effect organizational changes including the creation of officethe department or agency concerned.

x x x

Another legal basis of E.O. No. 132 is Section 20, Book III of E.O. No. 292 which states:chanrob1es virtual 1aw library

‘SECTION 20. Residual Powers. — Unless Congress provides otherwise, the President shall exercise such other powers and functions vesn the President which are provided for under the laws and which are not specifically enumerated above or which are not delegated by

President in accordance with law.’ (Emphasis ours)

This provision speaks of such other powers vested in the President under the law. What law then gives him the power to reorganize? Presidential Decree No. 1772 which amended Presidential Decree No. 1416. These decrees expressly grant the President of the Philippthe continuing authority to reorganize the national government, which includes the power to group, consolidate bureaus and agenciesabolish offices, to transfer functions, to create and classify functions, services and activities and to standardize salaries and materials. validity of these two decrees are unquestionable. The 1987 Constitution clearly provides that "all laws, decrees, executive ordproclamations, letters of instructions and other executive issuances not inconsistent with this Constitution shall remain operative u

amended, repealed or revoked. So far, there is yet no law amending or repealing said decrees." (Emphasis supplied)

Now, let us take a look at the assailed executive order.

n the whereas clause of E.O. No. 191, former President Estrada anchored his authority to deactivate EIIB on Section 77 of Republic 8745 (FY 1999 General Appropriations Act), a provision similar to Section 62 of R.A. 7645 quoted in Larin, thus;

"SECTION 77. Organized Changes. — Unless otherwise provided by law or directed by the President of the Philippines, no changes in positions or organizational units in any department or agency shall be authorized in their respective organizational structures and funfrom appropriations provided by this Act."cralaw virtua1aw library

We adhere to the precedent or ruling in Larin that this provision recognizes the authority of the President to effect organizational chan

n the department or agency under the executive structure. Such a ruling further finds support in Section 78 of Republic Act No. 8760Under this law, the heads of departments, bureaus, offices and agencies and other entities in the Executive Branch are directed (aconduct a comprehensive review of their respective mandates, missions, objectives, functions, programs, projects, activities and systand procedures; (b) identify activities which are no longer essential in the delivery of public services and which may be scaled dophased-out or abolished; and (c) adopt measures that will result in the streamlined organization and improved overall performance of trespective agencies. 23 Section 78 ends up with the mandate that the actual streamlining and productivity improvement in ageorganization and operation shall be effected pursuant to Circulars or Orders issued for the purpose by the Office of the President. 24 aw has spoken clearly. We are left only with the duty to sustain.

But of course, the list of legal basis authorizing the President to reorganize any department or agency in the executive branch does not hto end here. We must not lose sight of the very source of the power — that which constitutes an express grant of power. Under SectionBook III of Executive Order No. 292 (otherwise known as the Administrative Code of 1987), "the President, subject to the policy inExecutive Office and in order to achieve simplicity, economy and efficiency, shall have the continuing authority to reorganize

administrative structure of the Office of the President." For this purpose, he may transfer the functions of other Departments or Agento the Office of the President. In Canonizado v. Aguirre, 25 we ruled that reorganization "involves the reduction of personnel, consolidaof offices, or abolition thereof by reason of economy or redundancy of functions." It takes place when there is an alteration of the exisstructure of government offices or units therein, including the lines of control, authority and responsibility between them. The EIIB bureau attached to the Department of Finance. 26 It falls under the Office of the President. Hence, it is subject to the Pres ident’s continauthority to reorganize.chanrob1es virtua1 1aw 1ibrary

t having been duly established that the President has the authority to carry out reorganization in any branch or agency of the execudepartment, what is then left for us to resolve is whether or not the reorganization is valid. In this jurisdiction, reorganizations have bregarded as valid provided they are pursued in good faith. Reorganization is carried out in ‘good faith’ if it is for the pur pose of economto make bureaucracy more efficient. 27 Pertinently, Republic Act No. 6656 28 provides for the circumstances which may be consideredevidence of bad faith in the removal of civil service employees made as a result of reorganization, to wit: (a) where there is a signific

ncrease in the number of positions in the new staffing pattern of the department or agency concerned; (b) where an office is abolished



another performing substantially the same functions is created; (c) where incumbents are replaced by those less qualified in terms of stof appointment, performance and merit; (d) where there is a classification of offices in the department or agency concerned and reclassified offices perform substantially the same functions as the original offices, and (e) where the removal violates the ordeseparation. 29

Petitioners claim that the deactivation of EIIB was done in bad faith because four days after its deactivation, President Estrada created Task Force Aduana.

We are not convinced.

An examination of the pertinent Executive Orders 30 shows that the deactivation of EIIB and the creation of Task Force Aduana were don good faith. It was not for the purpose of removing the EIIB employees, but to achieve the ultimate purpose of E.O. No. 191, whiceconomy. While Task Force Aduana was created to take the place of EIIB, its creation does not entail expense to the government.

Firstly, there is no employment of new personnel to man the Task Force. E.O. No. 196 provides that the technical, administrative special staffs of EIIB are to be composed of people who are already in the public service, they being employees of other existing agencTheir tenure with the Task Force would only be temporary, i.e., only when the agency where they belong is called upon to assist the TForce. Since their employment with the Task force is only by way of detail or assignment, they retain their employment with the exisagencies. And should the need for them cease, they would be sent back to the agency concerned.

Secondly, the thrust of E.O. No. 196 is to have a small group of military men under the direct control and supervision of the Presidenbase of the government’s anti-smuggling campaign. Such a smaller base has the necessary powers 1) to enlist the assistance of department, bureau, or office and to use their respective personnel, facilities and resources; and 2) "to select and recruit personnel fr

within the PSG and ISAFP for assignment to the Task Force." Obviously, the idea is to encourage the utilization of personnel, facilities resources of the already existing departments, agencies, bureaus, etc., instead of maintaining an independent office with a whole sepersonnel and facilities. The EIIB had proven itself burdensome for the government because it maintained separate offices in every regn the Philippines.

And thirdly, it is evident from the yearly budget appropriation of the government that the creation of the Task Force Aduana was especntended to lessen EIIB’s expenses. Tracing from the yearly General Appropriations Act, it appears that the allotted amount for the E

general administration, support, and operations for the year 1995, was P128,031,000; 31 for 1996, P182,156,000; 32 for 19P219,889,000; 33 and, for 1999, P238,743,000. 34 These amounts were far above the P50,000,000 35 allocation to the Task Force Adufor the year 2000.

While basically, the functions of the EIIB have devolved upon the Task Force Aduana, we find the latter to have additional new powers.

Task Force Aduana, being composed of elements from the Presidential Security Group (PSG) and Intelligence Service Armed Forces ofPhilippines (ISAFP), 36 has the essential power to effect searches, seizures and arrests. The EIIB did not have this power. The Task FoAduana has the power to enlist the assistance of any department, bureau, office, or instrumentality of the government, inclugovernment-owned or controlled corporations; and to use their personnel, facilities and resources. Again, the EIIB did not have this powAnd, the Task Force Aduana has the additional authority to conduct investigation of cases involving ill -gotten wealth. This was not expregranted to the EIIB.

Consequently, it cannot be said that there is a feigned reorganization. In Blaquera v. Civil Service Commission, 37 we ruled thareorganization in good faith is one designed to trim the fat off the bureaucracy and institute economy and greater efficiency inoperation.

Lastly, we hold that petitioners’ right to security of tenure is not violated. Nothing is better settled in our law than that the abolition ofoffice within the competence of a legitimate body if done in good faith suffers from no infirmity. Valid abolition of offices is neither rem

nor separation of the incumbents. 38 In the instructive words laid down by this Court in Dario v. Mison, 39 through Justice AbrahamSarmiento:chanrob1es virtual 1aw library

Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganizats carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in cas

dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not bChinese wall. Be that as it may, if the ‘abolition,’ which is nothing else but a separation or removal, is done for political reasons or purpoto defeat security of tenure, otherwise not in good faith, no valid ‘abolition’ takes and whatever ‘abolition’ is done, is void ab initio. Th ean invalid ‘abolition’ as where there is merely a change of nomenclature of positions, or where claims of economy are belied byexistence of ample funds.

ndeed, there is no such thing as an absolute right to hold office. Except constitutional offices which provide for special immunity as reg

salary and tenure, no one can be said to have any vested right in an office or its salary. 40



While we cast a commiserating look upon the plight of all the EIIB employees whose lives perhaps are now torn with uncertainties,cannot ignore the unfortunate reality that our government is also battling the impact of a plummeting economy. Unless the governmegiven the chance to recuperate by instituting economy and efficiency in its system, the EIIB will not be the last agency to suffer the impWe cannot frustrate valid measures which are designed to rebuild the executive department.

WHEREFORE, the petition is hereby DENIED. No costs.

SO ORDERED.chanrob1es virtua1 1aw 1ibrary

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Pardo, Buena, Ynares-Santiago and De Leon, Jr., JJ., concur.

Quisumbing and Panganiban, JJ., concur in the result.

Gonzaga-Reyes, J., is on leave.G.R. No. 144153 January 16, 2002MA. CHONA M. DIMAYUGA, petitiovs.MARIANO E. BENEDICTO II, TOLL REGULATORY BOARD, GREGORIO R. VIGILAR, and RONALDO B. ZAMORA, respondents.DE LEON, JR., J.: Before us is a petition for review on certiorari seeking the reversal of the Decision

1 dated July 25, 2000 rendered by the former Seventee

Division of the Court of Appeals in CA-G.R. SP No. 54733 dismissing the quo warranto suit filed by petitioner.The facts are:

On October 26, 1992, then Secretary of Public Works and Highways Jose P. de Jesus issued a permanent appointment in favor of petitioChona M. Dimayuga as Executive Director II of the Toll Regulatory Board ("Board").

2 As its highest-ranking working official, petitio

exercised powers of control and supervision over the Board's three (3) division, namely its Finance and Administrative Division, Technical Division and the Engineering Division. She also oversaw the Board's build-operate-and-transfer ("BOT") projects, such as Metro Manila Skyway Project and the Manila-Cavite Tollway Project, and likewise participated in the negotiations for the Manila-SuExpressway Project and the South Luzon Tollway Extension Project. At the time, the position of Executive Director II was not deemed pathe career executive service, that is, until June 4, 1993, when it was included therein.On May 31, 1994, the Civil Service Commission issued Memorandum Circular No. 21.

3 Section 4 of the Memorandum states:

xxx xxx xxx4. Status of Appointment of Incumbents of Positions Included Under the Coverage of the CES. Incumbents of positwhich are declared to be Career Executive Service positions for the first time pursuant to this Resolution who hpermanent appointment thereto shall remain under permanent status in their respective positions. However, u

promotion or transfer to other Career Executive Service (CES) positions, these incumbents shall be under tempostatus in said positions until they qualify.xxx xxx xxx

Petitioner alleges that during her tenure, she became the subject of several administrative and criminal complaints designed to coerceremoval. On the strength of these complaints, respondent former Department of Public Works and Highways ("DPWH") Secretary GregR. Vigilar issued a first ninety-day suspension order

4 against petitioner on November 28, 1997. Upon the expiration of the first suspensio

second ninety-day suspension order5 dated March 26, 1998 was issued against petitioner, this time by then Executive Secretary Alexan

Aguirre.6

On the expiration of the second suspension order, petitioner re-assumed her duties on June 25, 1998. However, respondent Vigilar isson the following day Department Order No. 85, series of 1998,

7 by virtue of which petitioner was "temporarily detailed" at the Office of

Secretary of the DPWH. Concurrently, he addressed a Memorandum8 dated June 26, 1998 to petitioner directing her to report to the L

Service of the Department "to assist in the evaluation of appealed cases and preparation of corresponding decisions thereon involvingmplementation of P.D. No. 1096, otherwise known as the National Building Code of the Philippines," and other cases that may be assig

to her. As a gesture of protest, petitioner filed a leave of absence until September 30, 1998 rather than assume a position which considered a demotion.n the meantime, responding to a letter dated December 1, 1998

9 from petitioner requesting a clarification on her status, the Ca

Executive Service Board ("CESB") replied in a letter dated December 15, 1998,10

to wit:xxx xxx xxxIt has always been the stand of the CES Board, even before the issuance of MC 21 by the CSC, to respect or honor appointment status of an official appointed to a position which is subsequently included in the CES, such that if appointment was of a permanent status or nature, the inclusion of the position in the CES is not deemed to have chanthe status of the appointee to the position. xxx

On September 28, 1998, while she was on leave, petitioner received a letter dated September 22, 1998 from respondent Vigilar informher that then President Joseph E. Estrada had appointed respondent Mariano E. Benedicto II in her stead as Executive Director II ofBoard. The letter cited a Memorandum dated June 30, 1998

11 issued by then Executive Secretary Ronaldo B. Zamora addressed to all he

of departments, agencies, and offices, as follows:

http://www.lawphil.net/judjuris/juri2002/jan2002/gr_144153_2002.html#fnt1










































1. Pursuant to existing laws and jurisprudence, non-career officials/personnel or those occupying political positions deemed co-terminous with the outgoing Administration.2. Accordingly, they shall vacate their positions effective 01 July 1998 and turnover their offices to the highest rankcareer officials, unless otherwise specifically retained by the Department Heads concerned or extended appointments by the President.xxx xxx xxx

Since she had been effectively removed from her position, petitioner filed on September 6, 1999 a petition for quo warranto beforeCourt of Appeals, docketed as CA-G.R. SP No. 54733. On July 25, 2000, the appellate court rendered the assailed decision dismispetitioner's suit. The appellate court held that:

xxx xxx xxx

In the case at bar, petitioner was appointed in a permanent capacity to the position of Executive Director II of the TR1992. At that time, said position was excluded from the coverage of the CES, so petitioner was able to occupy sposition although she was not a career service executive officer (CESO). The subsequent inclusion of her position unthe CES, however, did not automatically qualify her for the said position as she lacked the required eligibility. At most,permanent status accorded to her appointment would only allow her to occupy said position until the appointauthority would replace her with someone who has the required eligibility therefor.The CSC, in issuing MC 21, could not have intended to unwittingly permit non-career service officers to hold on defiaand in a permanent character to career service positions by virtue of their permanent appointments. Such a preposteinterpretation characterized by (1) entrance based on merit and fitness to be determined as far as practicablecompetitive examinations, or based on highly technical qualifications; (2) security of tenure; and (3) opportunityadvancement to higher career positions. Moreover, such an unthinkable interpretation would lead to an absurd situatwherein an incumbent could hold on to his post adamantly for as long as he wants by reason of his permanappointment, and even without qualifying for said position.

xxx xxx xxxSecondly, petitioner may not claim any proprietary right to her post as Executive Director II of the TRB because this woencroach upon the executive powers of the President. Such obstinate refusal by petitioner to vacate said position counter to the wide latitude given to the appointing authority or to the President, in this matter, in exercising his poof appointment in accordance with the provisions of the Constitution.Moreover, if We were to espouse petitioner's depthless construction of Section 4 of MC 21, unqualified governmemployees would arrogate to themselves the right to decide to stay permanently in their respective posts. This woleave the appointing authority helpless in exercising his power of appointment that also includes the powerremoval.1âwphi1.nêt Thirdly, petitioner's claim to security of tenure must be rejected.This Court has repeatedly held that this guaranty is available only to permanent appointees [citation omitted].Under the Administrative Code of 1987, a permanent appointment shall be issued to a person who meets all

requirements for the position to which he is being appointed, including the appropriate eligibility prescribedaccordance with the provisions of law, rules and standards promulgated in pursuance thereof.Petitioner is not a CESO. Without the required eligibility for a career service position, petitioner cannot be considerepermanent appointee under the law. As stated, a permanent appointment is extended to a persons possessing requisite qualifications, including the eligibility required, for the position, and thus protected by the constitutioguaranty of security of tenure. Since petitioner does not have the prescribed CES eligibility for the position concerned,can be removed from office anytime because she does not have security of tenure.Likewise, she cannot complain that her removal was not "for cause provided by law." The phrase "for cause providedlaw" is a guarantee of both procedural and substantive due process. This right proceeds from one's entitlemensecurity of tenure which herein petitioner does not have due to her ineligibility for the position concerned.As the Supreme Court held in Achacoso (infra), "[I]t is settled that a permanent appointment can be issued only tperson who meets all the requirements for the position to which he is being appointed, including the appropreligibility prescribed. Achacoso did not. At best, therefore, his appointment could be regarded only as temporary. A

being so, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformablyestablished jurisprudence."xxx xxx xxx

Aggrieved by the dismissal of her petition for quo warranto, petitioner comes to us via the instant petition for review on certiorari, urgthe reversal of the appellate court's decision on the following grounds:

ITHE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE ERROR IN LAW WHEN IT HELD THAT PETITIONER HAS VESTED RIGHT TO THE POSITION IN QUESTION.IITHE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE ERROR IN LAW WHEN IT HELD THAT PETITIONER'S REFUTO VACATE HER POSITION RUNS COUNTER TO THE POWER OF APPOINTMENT AND REMOVAL OF THE PRESIDENT.III



THE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE ERROR IN LAW WHEN IT REJECTED PETITIONER'S CLAIMSECURITY OF TENURE.IVTHE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE ERROR IN LAW WHEN IT DISMISSED THE PETITION FOR QWARRANTO FILED BY PETITIONER.VTHE COURT OF APPEALS COMMITTED A SERIOUS AND GRAVE ERROR IN LAW WHEN IT FAILED TO AWARD PETITIONMORAL DAMAGES, EXEMPLARY DAMAGES, ATTORNEY'S FEES AND LITIGATION EXPENSES.

The statutory backbone of petitioner's arguments is Memorandum Circular No. 21 dated May 31, 1994 issued by the Civil ServCommission ("CSC"). The circular states:

TO: ALL HEADS OF DEPARTMENTS, BUREAUS, AND AGENCIES OF THE NATIONAL AND LOCAL GOVERNMENT INCLUDGOVERNMENT OWNED AND CONTROLLED CORPORATIONS AND STATE COLLEGES AND UNIVERSITIES.SUBJECT: Coverage of the Career Executive ServicePursuant to CSC Resolution No. 94-2925 dated May 31, 1994, the Commission adopts the following guidelines on coverage of the Career Executive Service:1. Positions Covered by the Career Executive Service.

(a) The Career Executive Service includes the positions of Undersecretary, Assistant Secretary, Bureau DirecAssistant Bureau Director, Regional Director (department-wide and bureau-wide), Assistant Regional Dire(department-wide and bureau-wide) and Chief of Department Service.(b) In addition to the above identified position and other positions of the same category which had bpreviously classified and included in the CES, all other third level positions in all branches and instrumentalitiethe national government, including government-owned or controlled corporations with original charters embraced within the Career Executive Service provided that they meet the following criteria:

1. the position is a career position;2. the position is above division chief level;3. the duties and responsibilities of the position require the performance of executive or managerial functions

2. Positions Excluded from the Career Executive Service.(a) Supervisory and executive positions which have fixed terms of office as provided for in the charter of agency or as specified by law;(b) Supervisory and executive positions in the non-career service which include the following:

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 President and their personal or confidential staff;3. Chairman and members of commission and boards with fixed terms of office and their personaconfidential staff;

4. Contractual personnel or those whose employment in the government is in accordance with a specontract to undertake a specific work or job, and,5. Emergency and seasonal personnel.

(c) Supervisory and executive positions in the national government belonging to the closed career systems ware administered by special bodies such as the Foreign Service, Philippine National Police, State Colleges Universities unless otherwise provided in their respective charters, the Scientific Career Service and the like.

3. Position of Head Executive Assistant. The position of Head Executive Assistant, whether in departments, agencbranches or instrumentalities of the national government, including Government-Owned or Controlled Corporations wthe original charters shall not be within the coverage of the Career Executive Service.4. Status of Appointment of Incumbents of Positions Included Under the Coverage of the CES. Incumbents of posit

which are declared to be Career Executive Service positions for the first time pursuant to this Resolution who h

permanent appointments thereto shall remain under permanent status in their respective positions. However, u

promotion or transfer to other Career Executive Service (CES) positions, these incumbents shall be under temporary sta

in said other CES positions until they qualify . (italics supplied)5. Exemption from the Coverage in the Career Executive Service of Agencies. An agency may request the Commission a position be declared a non-CES position if the head of the agency believes that said positions does not properly bein the Career Executive Service. A request for exemption should be filed with the Career Executive Service Office of Civil Service commission accompanied by appropriate justifications. Upon receipt of such request, the Commission sissue a decision on the matter within a reasonable time.6. Positions in Local Government Units. Third level positions in local government units (municipal corporations) or simentities including those devolved from the National Government are, for the meantime, excluded from the coveragethe Career Executive Service.This Memorandum Circular takes effect immediately.

Section 4 of CSC Memorandum Circular No. 21 upon which petitioner relies makes particular reference to incumbents of positions "whare declared to be part of the Career Executive Service for the first time pursuant to this resolution who hold permanent appointm

thereto." The position which petitioner held, however, was classified as part of the career executive service a year earlier, on June 4, 19



the legal basis therefor being Presidential Decree No. 1 dated September 24, 1972,12

adopting the Integrated Reorganization Plan as pathe law of the land. Upon closer scrutiny, section 4 appears to contradict the principle which we laid down in Achacoso v. Macaraig,

13 th

(3) years prior to the issuance of the circular, to wit:It is settled that a permanent appointment can be issued only "to a person who meets all the requirements for position to which he is being appointed, including the appropriate eligibility prescribed." Achacoso did not. At btherefore, his appointment could be withdrawn at will by the appointing authority and "at a moment's noticconformably to established jurisprudence.xxx xxx xxxThe mere fact that a position belongs to the Career Service does not automatically confer security of tenure onoccupant even if he does not possess the required qualifications. Such right will have to depend on the nature of

appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualificatfor the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed merely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannotregarded as permanent even if it may be so designated.

t is useful to note that Achacoso served as the jurisprudential basis in recent cases involving issue of security of tenure in career executservice positions. In the doctrinal case of Cuevas v. Bacal ,

14 the object of controversy was the title of Chief Public Attorney in the Pu

Attorney's Office, which requires a CES Rank Level 1. The claimant, respondent Atty. Josefina Bacal, who possessed a CESO III rank, appointed as such in February 1998 by then President Fidel V. Ramos. In July 1998, she was "transferred" and appointed Regional DirecDesignated in her stead by former President Joseph E. Estrada as "Chief Public Defender" was Atty. Carina J. Demaisip. As Demaisip wasa CES eligible, Bacal filed a quo warranto suit before the Court of Appeals questioning the former's appointment. The Court of Apperendered judgment in Bacal's favor which, however, we reversed.1âwphi1.nêt n that case of Bacal this Court emphasized two (2) salient points, to wit:

First, in order to qualify an appointment as permanent, the appointee must possess the rank appropriate to the position. Failure in

respect will render the appointment merely temporary. In Atty. Bacal's case, it was ruled that she did not acquire tenure since she had a CESO III rank; and that she was not appointed CESO I which was the requisite eligibility for the position of Chief Public Attorney.Second, security of tenure in the career executive service ("CES") is thus acquired with respect to rank and not to position. The guarantsecurity of tenure to members of the career executive service does not extend to the particular positions to which they may be appointa concept which is applicable only to first and second-level employees in the civil service - but to the rank to which they are appointedthe President.We reiterate those points here if only to serve as a contradistinction to petitioner's arguments. If a career executive officer's securitytenure pertains only to his rank and not to his position, with greater reason then that petitioner herein, who is not even a CESO eligible,no security of tenure with regard to the position of Executive Director II of the Toll Regulatory Board which was earlier classified on Jun1993 as part of the career executive service or prior to the issuance of CSC Memorandum Circular No. 21 dated May 31, 1994.Our ruling in the fairly recent case of De Leon v. Court of Appeal s

15 is more appropriate and applicable to the case at bar. The priv

respondent therein, like herein petitioner Dimayuga, was not a career executive service officer, yet he was issued a perman

appointment as Department Legal Counsel which is a career executive service position. A dispute arose when the private respondtherein was reassigned as "Director III (Assistant Regional Director)" of Region IX. We subsequently rendered judgment in that case ofLeon finding that the therein private respondent's security of tenure was not violated. In sustaining his reassignment, we held that:

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure onoccupant even if he does not possess the required qualifications. Such right will have to depend on the nature ofappointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualificatfor the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed tmerely in an acting capacity in the absence of appropriate eligibles. The appointment extended to him cannotregarded as permanent even if it may be so designated.Evidently, private respondent's appointment did not attain permanency. Not having taken the necessary Career ExecuService Examination to obtain the requisite eligibility, he did not at the time of his appointment and up to the presepossess the needed eligibility for a position in the Career Executive Service. Consequently, his appointment as MiniLegal Counsel - CESO IV/Department Legal Counsel and/or Director III, was merely temporary. Such being the case,

could be transferred or reassigned without violating the constitutionally guaranteed right to security of tenure.Private respondent capitalizes on his lack of CES eligibility by adamantly contending that the mobility and flexibconcepts in the assignment of personnel under the Career Executive Service do not apply to him because he is noCareer Executive Service Officer. Obviously, the contention is without merit. As correctly pointed out by the SolicGeneral, non-eligibles holding permanent appointments to CES positions were never meant to remain immobile in tstatus. Otherwise, their lack of eligibility would be a premium vesting them with permanency in the CES positionprivilege even their eligible counterparts do not enjoy.Then too, the cases on unconsented transfer invoked by private respondent find no application in the present casereiterate, private respondent's appointment is merely temporary; hence, he could be transferred or reassigned to otpositions without violating his right to security of tenure.

n the light of the foregoing premises, the Civil Service Commission's opinion as embodied in its reply letter to petitioner dated Decem15, 1998 sustaining petitioner's alleged permanent appointment as Executive Director of the Toll Regulatory Board on the basis of secti



















of Memorandum Circular No. 21 loses persuasion and applicability to the case at bar. Petitioner is not a CESO eligible. In other words, nstant petition is devoid of merit.

WHEREFORE, the instant petition is hereby DENIED for lack of merit. The Decision dated July 25, 2000 rendered by the former SeventeeDivision of the Court of Appeals in CA-G.R. SP No. 54733 is AFFIRMED. Costs against petitioner.SO ORDERED.Bellosillo, Mendoza, Quisumbing, and Buena, JJ., concur.G.R. No. 143540 April 11, 2003

JOEL G. MIRANDA, petitioner,vs.

ANTONIO C. CARREON, MILAGROS B. CASCO, ELSIE S. ESTARES, JULIUS N. MALLARI, ELINORA A. DANAO, JOVELYN G. RETAMAL, MARIFALMAZAN, JONALD R. DALMACIO, JENNIFER C. PLAZA, RIZALDY B. AGGABAO, VILMA T. VENTURA, BENEDICT B. PANGANIBAN, JOSGOMBIO, MELCHOR E. SORIANO, ZARINA C. PANGANIBAN, EMELITA D. TAUYA, EVANGELINE A. SICAM, MATABAI AQUARIOUS Q. CULAMELVIN L. GARCIA, JOHNNY N. YU, JR., LOIDA J. PURUGGANAN, EDUARDO S. VALENCIA, EDITHA A. REGLOS, HENRY P. MAPALAD, RAMGALANG, JUSTINA M. MACASO, MARTHA B. ALLAM, and ARSENIA A. CATAINA, respondents.

SANDOVAL-GUTIERREZ, J.:

Before us is a petition for review on certiorari1 assailing the Decision2 dated May 21, 1999 and the Resolution dated June 5, 2000 of Court of Appeals in CA-G.R. SP No. 36997.

n the early part of 1988, Vice Mayor Amelita Navarro, while serving as Acting Mayor of the City of Santiago because of the suspensioMayor Jose Miranda, appointed the above-named respondents to various positions in the city government. Their appointments were w

permanent status and based on the evaluation made by the City Personnel Selection and Promotion Board (PSPB) created pursuanRepublic Act No. 7160.3 The Civil Service Commission (CSC) approved the appointments.

When Mayor Jose Miranda reassumed his post on March 5, 1998 after his suspension, he considered the composition of the PSPB irregsince the majority party, to which he belongs, was not properly represented.4 He then formed a three-man special performance audit tecomposed of Roberto C. Bayaua, Antonio AL. Martinez and Antonio L. Santos, to conduct a personnel evaluation audit of those who wpreviously screened by the PSPB and those on probation. After conducting the evaluation, the audit team submitted to him a report daJune 8, 1998 stating that the respondents were found "wanting in (their) performance."

On June 10, 1998, or three months after Mayor Miranda reassumed his post, he issued an order terminating respondents’ services effecJune 15, 1998 because they "performed poorly" during the probationary period.

Respondents appealed to the CSC, contending that being employees on probation,5 they can be dismissed from the service on the groof poor performance only after their probationary period of six months, not after three (3) months. They also denied that an evaluationtheir performance was conducted, hence, their dismissal from the service violated their r ight to due process.

On October 19, 1998, the CSC issued Resolution No. 982717 reversing the order of Mayor Miranda and ordering that respondentsreinstated to their former positions with payment of backwages, thus:

x x x

"Granting that the complainant-employees (now respondents) indeed rated poorly, the question that remains is whether they canterminated from the service on that ground.

x x x

"x x x, at the time of their termination the complainants have not finished the six (6) months probationary period. x x x, they mayterminated even before the expiration of the probationary period pursuant to Section 26, par. 1, Chapter 5, Book V, Title I-A of the ReviAdministrative Code of 1987. Said Section provides:

‘All such persons (appointees who meet all the requirements of the position) must serve a probationary period of six months following toriginal appointment and shall undergo a thorough character investigation in order to acquire a permanent civil service statuprobationer may be dropped from the service for unsatisfactory conduct or for want of capacity anytime before the expiration of probationary period: Provided, that such action is appealable to the Commission.’

"It is, however, clear from the foregoing quoted provision that an employee on probation status may be terminated only for unsatisfactconduct or want of capacity. In this case, the services of the complainants were terminated on the ground of poor performance x

Although poor performance may come near the concept of want of capacity, the latter, as held by this Commission, ‘implies opportunit



the part of the head of office to observe the performance and demeanor of the employee concerned’ (Charito Pandes, CSC Resolu tion965592). At this point, considering that Mayor Jose Miranda reassumed his post only on March 5, 1998 after serving his suspension, quite improbable that he can already gauge the performance of the complainants through the mere lapse of three months considering the date of the letter of termination is June 10, 1998 and its effectivity date June 15, 1998."6 (emphasis supplied)

Meanwhile, the COMELEC disqualified Mayor Jose Miranda as a mayoralty candidate in the 1998 May elections. His son Joel G. Miraherein petitioner, substituted for him and was proclaimed Mayor of Santiago City. He then filed a motion for reconsideration of the Resolution No. 982717 (in favor of respondents) but it was denied in the CSC Resolution No. 990557 dated March 3, 1999.

Petitioner then filed with the Court of Appeals a petition for review on certiorari, docketed as CA-G.R. SP No. 36997. On May 21, 1999,

Court of Appeals rendered a Decision affirming in toto the CSC Resolution No. 982717. Forthwith, petitioner filed a motion reconsideration, but before it could be resolved by the Court of Appeals, several events supervened. This Court, in G.R. No. 136351, "JoeMiranda vs. Antonio M. Abaya and the COMELEC," set aside the proclamation of petitioner as Mayor of Santiago City for lack of a certifiof candidacy and declared Vice Mayor Amelita Navarro as City Mayor by operation of law.7

On December 20, 1999, Mayor Navarro filed with the Court of Appeals a "Motion to Withdraw the Motion for Reconsideration" (previosubmitted by former Mayor Joel G. Miranda).

On June 5, 2000, the Court of Appeals denied petitioner’s motion for reconsideration of its Decision.

On June 11, 2000, the Court of Appeals granted Mayor Navarro’s "Motion to Withdraw the Motion for Reconsideration." In effect , the Resolution reinstating respondents to their positions stays.

n this petition, petitioner Joel G. Miranda contends that the Court of Appeals erred in affirming the CSC Resolution declaring that termination of respondents’ services is illegal and ordering their reinstatement to their former positions with payment of backwages.

n their comment, respondents claim that since petitioner ceased to be Mayor of Santiago City, he has no legal personality to file the inspetition and, therefore, the same should be dismissed. They insist that they were not actually evaluated on their performance. assuming there was indeed such an evaluation, it should have been done by their immediate supervisors, not by those appointed by forMayor Jose Miranda.

n his reply, petitioner contends that as a taxpayer, he has a legal interest in the case at bar, hence, can lawfully file this petition.

Section 17, Rule 3 of the 1997 Rules of Civil Procedure, as amended, provides:

"Sec. 17. Death or separation of a party who is a public officer. – When a public officer is a party in an action in his official capacity during its pendency dies, resigns or otherwise ceases to hold office, the action may be continued and maintained by or against his succef, within thirty (30) days after the successor takes office or such time as may be granted by the Court, it is satisfactorily shown by any p

that there is substantial need for continuing or maintaining it and the successor adopts or continues or threatens to adopt or continueaction of his predecessor."

t is clear from the above Rule that when petitioner ceased to be mayor of Santiago City, the action may be continued and maintainedhis successor, Mayor Amelita Navarro, if there is substantial need to do so.

Mayor Navarro, however, found no substantial need to continue and maintain the action of her predecessor in light of the CSC Resoludeclaring that respondents’ services were illegally terminated by former Mayor Jose Miranda. In fact, she filed with the Cour t of Appa"Motion to Withdraw the Motion for Reconsideration" (lodged by petitioner). She likewise reinstated all the respondents to trespective positions and approved the payment of their salaries.

Petitioner insists though that as a taxpayer, he is a real party-in-interest and, therefore, should continue and maintain this suit. Scontention is misplaced. Section 2, Rule 3 of the same Rules provides:

"Section 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured by the judgment in the suit, orparty entitled to the avails of the suit. Unless otherwise authorized by law or these Rules, every action must be prosecuted or defendethe name of the real party in interest." (emphasis supplied)

Even as a taxpayer, petitioner does not stand "to be benefited or injured by the judgment of the suit." Not every action filed by a taxpacan qualify to challenge the legality of official acts done by the government.8 It bears stressing that "a taxpayer’s suit re fers to a case whthe act complained of directly involves the illegal disbursement of public funds from taxation."9 The issue in this case is whetrespondents’ services were illegally terminated. Clearly, it does not involve the illegal disbursement of public funds, hence , petition

action cannot be considered a taxpayer’s suit.



At any rate, to put to rest the controversy at hand, we shall resolve the issue of whether respondents’ services were illegal ly terminateformer Mayor Jose Miranda.

The 1987 Constitution provides that "no officer or employee of the civil service shall be removed or suspended except for cause providby law."10 Under the Revised Administrative Code of 1987, a government officer or employee may be removed from the service on twogrounds: (1) unsatisfactory conduct and (2) want of capacity. While the Code does not define and delineate the concepts of these tgrounds, however, the Civil Service Law (Presidential Decree No. 807, as amended) provides specific grounds for dismissing a governmofficer or employee from the service. Among these grounds are inefficiency and incompetence in the performance of official duties. In case at bar, respondents were dismissed on the ground of poor performance. Poor performance falls within the concept of inefficiency

ncompetence in the performance of official duties which, as earlier mentioned, are grounds for dismissing a government officiaemployee from the service.

But inefficiency or incompetence can only be determined after the passage of sufficient time, hence, the probationary period of sixmonths for the respondents. Indeed, to be able to gauge whether a subordinate is inefficient or incompetent requires enough time onpart of his immediate superior within which to observe his performance. This condition, however, was not observed in this case. As astated by the CSC, it is quite improbable that Mayor Jose Miranda could finally determine the performance of respondents for only the three months of the probationary period.

Not only that, we find merit in respondents’ claim that they were denied due process. They cited Item 2.2 (b), Section VI of the OmnGuidelines on Appointments and Other Personnel Actions (CSC Memorandum Circular No. 38, Series of 1993, as amended by Memorandum Circular No. 12, Series of 1994) which provides:

"2.2. Unsatisfactory or Poor Performance

x x x

b. An official or employee who, for one evaluation period, is rated poor in performance, may be dropped from the rolls after due notDue notice shall mean that the officer or employee is informed in writing of the status of his performance not later than the fourth moof that rating period with sufficient warning that failure to improve his performance within the remaining period of the semester swarrant his separation from the service. Such notice shall also contain sufficient information which shall enable the employee to preparexplanation."11 (emphasis supplied)

Respondents vehemently assert that they were never notified in writing regarding the status of their performance, neither were twarned that they will be dismissed from the service should they fail to improve their performance. Significantly, petitioner did not ref

respondents’ assertion. The records show that what respondents received was only the termination order from Mayor Jose MiraObviously, respondents’ right to due process was violated.

Moreover, respondents contend that the only reason behind their arbitrary dismissal was Mayor Jose Miranda’s percep tion that they wnot loyal to him, being appointees of then Acting Mayor Navarro. This contention appears to be true considering that all those who waccepted and screened by the PSPB during the incumbency of Acting Mayor Navarro were rated to have performed poorly by an audit twhose three members were personally picked by Mayor Jose Miranda.

The Constitution has envisioned the civil service to be a career service based on merit and rewards system that will truly be accountaand responsive to the people and deserving of their trust and support.12 These noble objectives will be frustrated if the tenure ofmembers is subject to the whim of partisan politics. A civil servant who lives in ceaseless fear of being capriciously removed from ofevery time a new political figure assumes power will strive to do anything that pleases the latter. In this way, he will hardly deveefficiency, accountability and a sense of loyalty to the public service. Such a climate will only breed opportunistic, inefficient

rresponsible civil servants to the detriment of the public. This should not be countenanced.

n fine, we hold that petitioner, not being a real party in interest, has no legal personality to file this petition. Besides, his motionreconsideration was validly withdrawn by the incumbent Mayor. Even assuming he is a real party in interest, we see no reason to distthe findings of both the CSC and the Court of Appeals. The reinstatement of respondents who, unfortunately, were victims of politbickerings, is in order.

WHEREFORE, the petition is DENIED. The assailed Decision dated May 21, 1999 of the Court of Appeals in CA-G.R. SP No. 3699AFFIRMED.

Treble costs against petitioner.

SO ORDERED.



Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-MoraCallejo, Sr., and Azcuna, JJ., concur.

DR. HANS CHRISTIAN M. SEÑERES,

Petitioner,

- versus -

COMMISSION ON ELECTIONS and MELQUIADES A. ROBLES,

Respondents.

G.R. No. 178678

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

CARPIO MORALES,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

LEONARDO-DE CASTRO,



BRION,

PERALTA, and

BERSAMIN, JJ.

Promulgated:

April 16, 2009

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

D E C I S I O N

VELASCO, JR., J.:

The Case

Before us is a Petition for Certiorari[1] under Rule 65 with a prayer for a temporary restraining order and/or preliminary injunction to nuand enjoin the implementation of the Resolution[2] dated July 19, 2007 of the Commission on Elections (COMELEC), which declarespondent Melquiades Robles (Robles) as the President of Buhay Hayaan Yumabong (Buhay).

The Undisputed Facts

n 1999, private respondent Robles was elected president and chairperson of Buhay, a party-list group duly registered with COMELECThe constitution of BUHAY provides for a three-year term for all its party officers, without re-election.[4] BUHAY participated in the 2and 2004 elections, with Robles as its president. All the required Manifestations of Desire to Participate in the said electoral exercncluding the Certificates of Nomination of representatives, carried the signature of Robles as president of BUHAY.[5] On January 26, 20n connection with the May 2007 elections, BUHAY again filed a Manifestation of its Desire to Participate in the Party-List System

Representation.[6] As in the past two elections, the manifestation to participate bore the signature of Robles as BUHAY president.

On March 29, 2007, Robles signed and filed a Certificate of Nomination of BUHAY’s nominees for the 2007 elections containing

following names: (i) Rene M. Velarde, (ii) Ma. Carissa Coscolluela, (iii) William Irwin C. Tieng, (iv) Melchor R. Monsod, and (v) TeresitaVillarama. Earlier, however, or on March 27, 2007, petitioner Hans Christian Señeres, holding himself up as acting president and secretgeneral of BUHAY, also filed a Certificate of Nomination with the COMELEC, nominating: (i) himself, (ii) Hermenegildo C. Dumlao,Antonio R. Bautista, (iv) Victor Pablo C. Trinidad, and (v) Eduardo C. Solangon, Jr.[7]

Consequently, on April 17, 2007, Señeres filed with the COMELEC a Petition to Deny Due Course to Certificates of Nomination.[8] Inpetitioner Señeres alleged that he was the acting president and secretary-general of BUHAY, having assumed that position since August2004 when Robles vacated the position. Pushing the point, Señeres would claim that the nominations made by Robles were, for lacauthority, null and void owing to the expiration of the latter’s term as party president. Furthermore, Señeres asserted that Robles wunder the Constitution,[9] disqualified from being an officer of any political party, the latter being the Acting Administrator of the L



Railway Transport Authority (LRTA), a government-controlled corporation. Robles, so Señeres would charge, was into a partisan poliactivity which civil service members, like the former, were enjoined from engaging in.

On May 10, 2007, the National Council of BUHAY adopted a resolution[10] expelling Señeres as party member for his act of submittiCertificate of Nomination for the party. The resolution reads in part:

WHEREAS, Hans Christian M. Señeres, without authority from the National Council, caused the filing of his Certificate of Nomination wthe Comelec last 27 March 2007.

WHEREAS, Hans Christian M. Señeres, again without authority from the National Council, listed in his Certificate of Nomination namepersons who are not even members of the Buhay party.

WHEREAS, Hans Christian M. Señeres, knowing fully well that the National Council had previously approved the following as its off

nominees, to wit x x x to the 2007 Party-List elections; and that Mr. Melquiades A. Robles was authorized to sign and submit the parCertificate of Nomination with the Comelec; and, with evident premeditation to put the party to public ridicule and with scheming intento create confusion, still proceeded with the filing of his unauthorized certificate of nomination even nomination persons who are members of Buhay.

WHEREAS, Hans Christian M. Señeres, in view of the foregoing, underwent Party Discipline process pursuant to Article VII of Constitution and By-Laws of the Party.

x x x x

WHEREAS, after a careful examination of the [evidence] on his case, the National Council found Hans Christian M. Señeres to hcommitted acts in violation of the constitution and by-laws of the party and decided to expel him as a member of the party.

NOW THEREFORE, be it RESOLVED as it is hereby RESOLVED that the National Council has decided to expel Hans M. Señeres as a membethe party effective close of business hour of 10 May 2007.

BE IT RESOLVED FURTHER, that all rights and privileges pertaining to the membership of Hans M. Señeres with the party are consequecancelled.

BE IT RESOLVED FURTHER, that the President and Chairman of the National Council of Buhay, Mr. Melquiades A. Robles, is herauthorized to cause the necessary filing of whatever documents/letters before the House of Representatives and/or to any otentity/agency/person to remove/drop Mr. Señeres’ name in the roll of members in the said lower house. *11+



Later developments saw Robles filing a petition praying for the recognition of Jose D. Villanueva as the new representative of BUHAY inHouse of Representatives for the remaining term until June 30, 2007.[12] Attached to the petition was a copy of the expelling resolutadverted to. Additionally, Robles also filed on the same day an “Urgent Motion to Declare Null and Void the Certificate of Nomination Certificates of Acceptance filed by Hans Christian M. Señeres, Hermenegildo Dumlao, Antonio R. Bautista, Victor Pablo Trinidad Eduardo Solangon, Jr.”*13+

On July 9 and July 18, 2007, respectively, the COMELEC issued two resolutions proclaiming BUHAY as a winning party-list organization

the May 2007 elections entitled to three (3) House seats.[14]

This was followed by the issuance on July 19, 2007 by the en banc COMELEC of Resolution E.M. No. 07-043 recognizing and declaring Roas the president of BUHAY and, as such, was the one “duly authorized to sign documents in behalf of the party particularly

Manifestation to participate in the party-list system of representation and the Certification of Nomination of its nominees.”*15 ] Explaits action, COMELEC stated that since no party election was held to replace Robles as party president, then he was holding the position

hold-over capacity.[16]

The COMELEC disposed of the partisan political activity issue with the ter se observation that Señeres’ arguments on the applicabilit

Robles of the prohibition on partisan political activity were unconvincing.[17] The dispositive portion of the COMELEC Resolution reads:

WHEREFORE, premises considered, this Commission (En Banc) hereby recognizes Melquiades A. Robles as the duly authorrepresentative of Buhay Hayaan Yumabong (Buhay) and to act for and in its behalf pursuant to its Constitution and By-Laws.

SO ORDERED.[18]

On July 20, 2007, the first three (3) listed nominees of BUHAY for the May 2007 elections, as per the Certificate of Nomination filedRobles, namely Rene M. Velarde, Ma. Carissa Coscolluela, and William Irwin C. Tieng, took their oaths of office as BUHAY partyrepresentatives in the current Congress.[19] Accordingly, on September 3, 2007, the COMELEC, sitting as National Board of Canvassssued a Certificate of Proclamation to BUHAY and its nominees as representatives to the House of Representatives.[20]

Aggrieved, petitioner filed the instant petition.

The Issue

Whether or not the COMELEC acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excesjurisdiction in issuing its challenged Resolution dated June 19, 2007, which declared respondent Robles as the duly authorrepresentative of BUHAY, and there is no appeal or any other plain, speedy or adequate remedy in the ordinary course of law except nstant petition.

Our Ruling



The petition should be dismissed for lack of merit.

Petition for Certiorari Is an Improper Remedy

A crucial matter in this recourse is whether the petition for certiorari filed by Señeres is the proper remedy.

A special civil action for certiorari may be availed of when the tribunal, board, or officer exercising judicial or quasi-judicial functionsacted without or in excess of jurisdiction and there is no appeal or any plain, speedy, and adequate remedy in the ordinary course of lawthe purpose of annulling the proceeding.*21+ It is the “proper remedy to question any final order, ruling and decision of the COME

rendered in the exercise of its adjudicatory or quasi- judicial powers.”*22+ For certiorari to prosper, however, there must be a showing the COMELEC acted with grave abuse of discretion and that there is no appeal or any plain, speedy and adequate remedy in the ordincourse of law.

n the present case, a plain, speedy and adequate remedy in the ordinary course of law was available to Señeres. The 1987 Constitucannot be more explicit in this regard. Its Article VI, Section 17 states:

Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge ocontests relating to the election, returns and qualifications of their respective Members. x x x

This constitutional provision is reiterated in Rule 14 of the 1991 Revised Rules of the Electoral Tribunal of the HouseRepresentatives, to wit:

RULE 14. Jurisdiction.—The Tribunal shall be the sole judge of all contests relating to the election, returns and qualifications of Members of the House of Representatives.

n Lazatin v. House Electoral Tribunal, the Court elucidated on the import of the word “sole” in Art. VI, Sec. 17 of the Constitution, thus:

The use of the word ‘sole’ emphasizes the exclusive character of the jurisdiction conferred. The exercise of the power by the ElectCommission under the 1935 Constitution has been described as ‘intended to be as complete and unimpaired as if it had remained origin

n the legislature.’ Earlier, this grant of power to the legislature was characterized by Justice Malcolm as ‘full, clear and complete.’ Un

the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral Tribunal and it remained as full, clear complete as that previously granted the legislature and the Electoral Commission. The same may be said with regard to the jurisdictiothe Electoral Tribunals under the 1987 Constitution.”*23+



Then came Rasul v. COMELEC and Aquino-Oreta, in which the Court again stressed that “the word ‘sole’ in Sec. 17, Art. VI of the 1

Constitution and Sec. 250 of the Omnibus Election Code underscore the exclusivity of the Tribunal’s jurisdiction over election cont

relating to its members.”*24+

The House of Representatives Electoral Tribunal’s (HRET’s) sole and exclusive jurisdiction over contests relative to the elec tion, returns qualifications of the members of the House of Representatives “begins only after a candidate has become a member of the House

Representatives.”*25+ Thus, once a winning candidate has been proclaimed, taken his oath, and assumed office as a Mem ber of the Hoof Representatives, COMELEC’s jurisdiction over elections relating to the election, returns, and qualifications ends, and the HRET’s

jurisdiction begins.[26]

t is undisputed that the COMELEC, sitting as National Board of Canvassers, proclaimed BUHAY as a winning party-list organization forMay 14, 2007 elections, entitled to three (3) seats in the House of Representatives.[27] The proclamation came in the form of Resolutions dated July 9, 2007 and July 18, 2007,[28] respectively. Said resolutions are official proclamations of COMELEC considering BUHAY that ran for election as party-list organization and not the BUHAY nominees.

The following day, on July 19, 2007, the COMELEC issued the assailed resolution declaring “Melquiades A. Robles as the duly author

representative of Buhay Hayaan Yumabong (Buhay) and to act in its behalf pursuant to its Constitution and By- Laws.” COMELEC affirm

that his Certificate of Nomination was a valid one as it ruled that “Robles i s the President of Buhay Party-List and therefore duly authorto sign documents in behalf of the party particularly the Manifestation to participate in the pary-list system of representation and Certificate of Nomination of its nominees.”*29+ The S eptember 3, 2007 proclamation merely confirmed the challenged July 19, 2Resolution. The July 19, 2007 Resolution coupled with the July 9, 2007 and July 18, 2007 proclamations vested the Robles nominees right to represent BUHAY as its sectoral representatives.

Consequently, the first three (3) nominees in the Certificate of Nomination submitted by Robles then took their oaths of office before Chief Justice on July 20, 2007 and have since then exercised their duties and functions as BUHAY Party-List representatives in the curCongress.

Without a doubt, at the time Señeres filed this petition before this Court on July 23, 2007, the right of the nominees as partyrepresentatives had been recognized and declared in the July 19, 2007 Resolution and the nominees had taken their oath and alreassumed their offices in the House of Representatives. As such, the proper recourse would have been to file a petition for quo warrabefore the HRET within ten (10) days from receipt of the July 19, 2007 Resolution and not a petition for certiorari before this Court.[30]

Since Señeres failed to file a petition for quo warranto before the HRET within 10 days from receipt of the July 19, 2007 Resolutdeclaring the validity of Robles’ Certificate of Nomination, said Resolution of the COMELEC has already become final and executory. Tthis petition has now become moot and can be dismissed outright. And even if we entertain the instant special civil action, s till, petition

postulations are bereft of merit.

Act of Nominating Is Not Partisan Political Activity

Petitioner Señeres contends that Robles, acting as BUHAY President and nominating officer, as well as being the Administrator of the LRwas engaging in electioneering or partisan political campaign. He bases his argument on the Constitution, which prohibits any officeemployee in the civil service from engaging, directly or indirectly, in any electioneering or partisan political campaign.[31] He also cites S4 of the Civil Service Law which provides that “no officer or employee in the Civil Service x x x shall engage in any partisan political activ

Lastly, he mentions Sec. 26(i) of the Omnibus Election Code which makes it “an election offense for any officer in the civil service to dire

or indirectly x x x engage in any partisan political activity.”



This contention lacks basis and is far from being persuasive. The terms “electioneering” and “partisan political activity” ha ve westablished meanings in the Omnibus Election Code, to wit:

Section 79. x x x

(b) The term ‘election campaign’ or ‘partisan political activity’ refers to an act designed to promote the election or defeat particular candidate or candidates to a public office which shall include:

(1) Forming organizations, associations, clubs, committees, or other groups of persons for the purpose of soliciting votes andundertaking any campaign for or against a candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the purpose of soliciting voand/or undertaking any campaign or propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or against the election of any candidate for puoffice;

(4) Publishing or distributing campaign literature or materials designed to support or oppose the election of any cand idate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nominations for candidaca public office by a political party, agreement, or coalition of parties shall not be considered as election campaign or partisan elecactivity.

Public expression of opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms agaprobable candidates proposed to be nominated in a forth coming political party convention shall not be construed as part of any eleccampaign or partisan political activity contemplated under this Article. (Emphasis supplied.)

Guided by the above perspective, Robles’ act of submitting a nomination list for BUHAY cannot, without more, be conside

electioneering or partisan political activity within the context of the Election Code. First of all, petitioner did not aver that Robles commiany of the five (5) acts defined in the aforequoted Sec. 79(b) of the Code, let alone adduce proof to show the fact of commission.

Second, even if Robles performed any of the previously mentioned acts, Sec. 79 of the Code is nonetheless unequivocal that if the samdone only for the “purpose of enhancing the chances of aspirants for nominations for candidacy to a public office by a politi cal paagreement, or coalition of parties,” it is not considered as a prohibited electioneering or partisan election activity.



From this provision, one can conclude that as long as the acts embraced under Sec. 79 pertain to or are in connection with the nominaof a candidate by a party or organization, then such are treated as internal matters and cannot be considered as electioneering or partpolitical activity. The twin acts of signing and filing a Certificate of Nomination are purely internal processes of the party or organizaand are not designed to enable or ensure the victory of the candidate in the elections. The act of Robles of submitting the certifinominating Velarde and others was merely in compliance with the COMELEC requirements for nomination of party-list representatives ahence, cannot be treated as electioneering or partisan political activity proscribed under by Sec. 2(4) of Art. IX(B) of the Constitution for servants.

Moreover, despite the fact that Robles is a nominating officer, as well as Chief of the LRTA, petitioner was unable to cite any legal provithat prohibits his concurrent positions of LRTA President and acting president of a party-list organization or that bars him from nominati

Last but not least, the nomination of Velarde, Coscolluela, Tieng, Monsod, and Villarama to the 2007 party-list elections was, in the fanalysis, an act of the National Council of BUHAY. Robles’ role in the nominating process was limited to signing, on behalf of BUHAY, submitting the party’s Certificate of Nomination to the COMELEC.*32+ The act of nominating BUHAY’s representatives was veritably a di

and official act of the National Council of BUHAY and not Robles’. Be that as it may, it is irrelevant who among BUHAY’s off icials signsCertificate of Nomination, as long as the signatory was so authorized by BUHAY. The alleged disqualification of Robles as nominating offs indeed a non-issue and does not affect the act of the National Council of nominating Velarde and others. Hence, the Certificat

Nomination, albeit signed by Robles, is still the product of a valid and legal act of the National Council of BUHAY. Robles’ connection w

LRTA could not really be considered as a factor invalidating the nomination process.

“Hold-Over” Principle Applies

Petitioner Señeres further maintains that at the time the Certificate of Nomination was submitted, Robles’ term as President of BUHAY

already expired, thus effectively nullifying the Certificate of Nomination and the nomination process.

Again, petitioner’s contention is untenable. As a general rule, officers and directors of a corporation hold over after the expiration of tterms until such time as their successors are elected or appointed.[33] Sec. 23 of the Corporation Code contains a provision to this effthus:

Section 23. The board of directors or trustees.—Unless otherwise provided in this Code, the corporate powers of all corporations formunder this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the boardirectors or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of corporation, who shall hold office for one (1) year until their successors are elected and qualified.

The holdover doctrine has, to be sure, a purpose which is at once legal as it is practical. It accords validity to what would otherwisedeemed as dubious corporate acts and gives continuity to a corporate enterprise in its relation to outsiders.[34] This is the analogsituation obtaining in the present case. The voting members of BUHAY duly elected Robles as party President in October 1999. although his regular term as such President expired in October 2002,[35] no election was held to replace him and the other original seofficers.[36] Further, the constitution and by-laws of BUHAY do not expressly or impliedly prohibit a hold-over situation. As such, sincsuccessor was ever elected or qualified, Robles remained the President of BUHAY in a “hold-over” capacity.

Authorities are almost unanimous that one who continues with the discharge of the functions of an office after the expiration of his oregal term ––no successor having, in the meantime, been appointed or chosen ––is commonly regarded as a de facto officer, even where

provision is made by law for his holding over and there is nothing to indicate the contrary.[37] By fiction of law, the acts of such de fa

officer are considered valid and effective.[38]



So it must be for the acts of Robles while serving as a hold-over Buhay President. Among these acts was the submission of the nominatcertificate for the May 14, 2007 elections.

As a final consideration, it bears to state that petitioner is estopped from questioning the authority of Robles as President of BUHAY. Aprinciple of equity rooted on natural justice, the bar of estoppel precludes a person from going back on his own acts and representation

the prejudice of another whom he has led to rely upon them.[39]

Again, it cannot be denied that Robles, as BUHAY President, signed all manifestations of the party’s desire to participate in the 2001 2004 elections, as well as all Certificates of Nomination.[40] In fact, the corresponding certificate for the 2004 elections included petitioas one of the nominees. During this time, Robles’ term as President had already expired, and yet, petitioner never questioned Rob

authority to sign the Certificate of Nomination. As a matter of fact, petitioner even benefited from the nomination, because he earneseat in the House of Representatives as a result of the party’s success.*41+ Clearly, petitioner cannot now be heard to argue that Rob

term as president of BUHAY has long since expired, and that his act of submitting the Certificate of Nomination and the manifestationparticipate in the 2007 elections is null and void. He is already precluded from doing so.

WHEREFORE, the petition is DISMISSED. Resolution E.M. No. 07-043 of the COMELEC dated July 19, 2007 is AFFIRMED. No costs.

SO ORDERED.[G.R. No. L-69870. November 29, 1988.]

NATIONAL SERVICE CORPORATION (NASECO) AND ARTURO L. PEREZ, Petitioners, v. THE HONORABLE THIRD DIVISION, NATIONAL LABRELATIONS COMMISSION, MINISTRY OF LABOR AND EMPLOYMENT, MANILA AND EUGENIA C. CREDO, Respondents.

[G.R. No. L-70295.]

EUGENIA C. CREDO, Petitioner, v. NATIONAL LABOR RELATIONS COMMISSION, NATIONAL SERVICES CORPORATION AND ARTURO L. PERRespondents.

The Chief Legal Counsel for respondents NASECO and Arturo L. Perez.

Melchor R. Flores for petitioner Eugenia C. Credo.

SYLLABUS

1. LABOR LAW AND SOCIAL LEGISLATIONS; LABOR CODE; DISMISSAL; NOTICE OF DISMISSAL TO EMPLOYEES BEFORE TERMINATREQUIRED. — The guidelines provided in Rule XIV, Book V, Implementing Rules and Regulations, particularly Sections 2, 5 and 6 mandthat the employer furnish an employee sought to be dismissed two (2) written notices of dismissal before a termination of employmentbe legally effected. These are the notice which apprises the employee of the particular acts or omissions for which his dismissal is souand the subsequent notice which informs the employee of the employer’s decision to dismiss him.

2. ID.; ID.; ID.; DECISION TO DISMISS MAY ONLY BE ISSUED AFTER EMPLOYEES WAS AFFORDED DUE PROCESS. — A reading of the guideln consonance with the express provisions of law on protection to labor (which encompasses the right to security of tenure) and

broader dictates of procedural due process necessarily mandate that notice of the employer’s decision to dismiss an employee, w



reasons therefor, can only be issued after the employer has afforded the employee concerned ample opportunity to be heard anddefend himself.

3. ID.; ID.; ID.; SEVERE PENALTY OF DISMISSAL NOT WARRANTED IN CASE AT BAR. — Besides, Credo’s mere non-compliance with Llor

memorandum regarding the entry procedures in the company’s Statement of Billings Adjustment did not warrant the severe penalt

dismissal. As this Court has ruled: ". . . where a penalty less punitive would suffice, whatever missteps may be committed by labor ounot to be visited with a consequence so severe. It is not only because of the law’s concern for the workingman. There is, in additionfamily to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner."cralaw virtua1aw libra

4. ID.; ID.; ID.; REINSTATEMENT AND BACKWAGES, PROPER IN CASE OF UNJUSTIFIED DISMISSAL. — Considering that the acts or omiss

for which Credo’s employment was sought to be legally terminated were insufficiently proved, as to justify dismissal, reinsta temeproper For "absent the reason which gave rise to *the employee’s+ separation from employment, there is no intention on the part of employer to dismiss the employee concerned." And, as a result of having been wrongfully dismissed, Credo is entitled to three (3) yearbackwages without deduction and qualification.

5. ID.; ID.; ID.; EXEMPLARY DAMAGES AWARDED IF DISMISSAL WAS EFFECTED IN A WANTON FRAUDULENT OPPRESSIVE OR MALEVOLMANNER. — While Credo’s dismissal was effected without procedural fairness, an award of exemplary damages in her favor can only

justified if her dismissal was effected in a wanton, fraudulent, oppressive or malevolent manner.

6. ID.; ID.; ID.; MORAL DAMAGES AWARDED AS DISMISSAL WAS EFFECTED WITHOUT DUE PROCESS. — In view of the attendcircumstances in the case, i.e., lack of due process in effecting her dismissal, it is reasonable to award her moral damages.

7. ID.; ID.; ID.; ATTORNEY’S FEES AWARDED AS EMPLOYEE WAS COMPELLED TO LITIGATE. — For having been compelled to litigate beca

of the unlawful actuations of NASECO, a reasonable award for attorney’s fees in her favor is in order.

8. ID.; ID.; ID.; RULING IN NATIONAL HOUSING CORPORATION VS. JUCO, NOT GIVEN RETROACTIVE EFFECT. — It would appear that, innterest of justice, the holding in said case should not be given retroactive effect, that is, to cases that arose before its promulgation on

January 1985. To do otherwise would be oppressive to Credo and other employees similarly situated, because under the same 1Constitution but prior to the ruling in National Housing Corporation v. Juco, this Court had recognized the applicability of the Labor Codeand the authority of the NLRC to exercise jurisdiction over, disputes involving terms and conditions of employment in government-owor controlled corporations, among them, the National Service Corporation (NASECO).

9. CONSTITUTIONAL LAW; CIVIL SERVICE; SUBSIDIARIES OF GOVERNMENT OWNED OR CONTROLLED CORPORATION NOT INCLUDED IN AMBIT OF CIVIL SERVICE. — Thus, the situations sought to be avoided by the 1973 Constitution and expressed by the Court in the NatioHousing Corporation case in the following manner appear relegated to relative insignificance by the 1987 Constitutional provision that

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

D E C I S I O N

PADILLA, J.:

Consolidated special civil actions for certiorari seeking to review the decision ** of the Third Division, National Labor Relations Commissn Case No. 11-4944-83 dated 28 November 1984 and its resolution dated 16 January 1985 denying motions for reconsideration of

decision.

Eugenia C. Credo was an employee of the National Service Corporation (NASECO), a domestic corporation which provides security guardwell as messengerial, janitorial and other similar manpower services to the Philippine National Bank (PNB) and its agencies. She was employed with NASECO as a lady guard on 18 July 1975. Through the years, she was promoted to Clerk Typist, then Personnel Clerk ushe became Chief of Property and Records, on 10 March 1980. 1

Sometime before 7 November 1983, Credo was administratively charged by Sisinio S. Lloren, Manager of Finance and Special Project Evaluation Department of NASECO, stemming from her non-compliance with Lloren’s memorandum, dated 11 October 1983, regarcertain entry procedures in the company’s Statement of Billings Adjustment. Said charges alleged that Credo "did not comply with Llor

nstructions to place some corrections/additional remarks in the Statement of Billings Adjustment; and when [Credo] was called by Llo





burden of proving that the termination of Credo was for a valid or authorized cause, 3) the alleged infractions committed by Credo wnot proven or, even if proved, could be considered to have been condoned by petitioners, and 4) the termination of Credo was not fovalid or authorized cause. 15

On the other hand, in G.R. No. 70295, petitioner Credo challenges as grave abuse of discretion the dispositive portion of the 28 Novem1984 decision which dismissed her claim for attorney’s fees, moral and exemplary damages and limited her right to backwages t o only(6) months. 16

As guidelines for employers in the exercise of their power to dismiss employees for just causes, the law provthat:jgc:chanrobles.com.ph

"Section 2. Notice of dismissal. — Any employer who seeks to dismiss a worker shall furnish him a written notice stating the particular aor omission constituting the grounds for his dismissal . . .

"Section 5. Answer and Hearing. — The worker may answer the allegations stated against him in the notice of dismissal within a reasonperiod from receipt of such notice. The employer shall afford the worker ample opportunity to be heard and to defend himself withassistance of his representative, if he so desires.

"Section 6. Decision to dismiss. — The employer shall immediately notify a worker in writing of a decision to dismiss him stating clearly reasons therefor." 17

These guidelines mandate that the employer furnish an employee sought to be dismissed two (2) written notices of dismissal befortermination of employment can be legally effected. These are the notice which apprises the employee of the particular acts or omiss

for which his dismissal is sought and the subsequent notice which informs the employee of the employer’s decision to dismiss him.

Likewise, a reading of the guidelines in consonance with the express provisions of law on protection to labor 18 (which encompassesright to security of tenure) and the broader dictates of procedural due process necessarily mandate that notice of the employ er’s deci

to dismiss an employee, with reasons therefor, can only be issued after the employer has afforded the employee concerned amopportunity to be heard and to defend himself.

n the case at bar, NASECO did not comply with these guidelines in effecting Credo’s dismissal. Although she was apprised and "givenchance to explain her side" of the charges filed against her, this chance was given so perfunctorily, thus rendering illusory Credo’s righ

security of tenure. That Credo was not given ample opportunity to be heard and to defend herself is evident from the fact that compliance with the injunction to apprise her of the charges filed against her and to afford her a chance to prepare for her defense wdispensed in only a day. This is not effective compliance with the legal requirements aforementioned.

The fact also that the Notice of Termination of Credo’s employment (or the decision to dismiss her) was dated 24 November 1983

made effective 1 December 1983 shows that NASECO was already bent on terminating her services when she was informed on 1 Decem1983 of the charges against her, and that any hearing which NASECO thought of affording her after 24 November 1983 would merely beforma or an exercise in futility.

Besides, Credo’s mere non-compliance with Lloren’s memorandum regarding the entry procedures in the company’s Statement of BillAdjustment did not warrant the severe penalty of dismissal. The NLRC correctly held that:jgc:chanrobles.com.ph

". . ., on the charge of gross discourtesy, the CPA found in its Report, dated 22 November 1983 that, ‘In the process of

testimony/explanations she again exhibited a conduct unbecoming in front of NASECO Officers and argued to Mr. S. S. Lloren in a sarcaand discourteous manner, notwithstanding, the fact that she was inside the office of the Acctg. General Manager.’ Let it be n oted, howethat the Report did not even describe how the so called ‘conduct unbecoming or ‘discourteous manner’ was done by complainant. An

the ‘sarcastic’ argument of complainant, the purported transcript 19 of the meeting held on 7 November 1983 d oes not indicate sarcasm on the part of complainant. At the most, complainant may have sounded insistent or emphatic about her work being mcomplete than the work of Ms. de Castro, yet, the complaining officer signed the work of Ms. de Castro and did not sign hers.

"As to the charge of insubordination, it may be conceded, albeit unclear, that complainant failed ‘to place some corrections/ additiremarks in the Statement of Billings Adjustments’ as instructed. However, under the circumstances obta ining, where complainant strofelt that she was being discriminated against by her superior in relation to other employees, we are of the considered view and so hothat a reprimand would have sufficed for the infraction, but certainly not termination from services. 20

As this Court has ruled:jgc:chanrobles.com.ph



". . . where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequeso severe. It is not only because of the law’s concern for the workingman. There is, in addition, his family to consider. Unemployment bruntold hardships and sorrows on those dependent on the wage-earner." 21

Of course, in justifying Credo’s termination of employment, NASECO claims as additional lawful causes for dismissal Credo’s previous

repeated acts of insubordination, discourtesy and sarcasm towards her superior officers, alleged to have been committed from 1980 to 1983. 22

f such acts of misconduct were indeed committed by Credo, they are deemed to have been condoned by NASECO. For instance, sometn 1980, when Credo allegedly "reacted in a scandalous manner and raised her voice" in a discussion with NASECO’s Acting head of

Personnel Administration, 23 no disciplinary measure was taken or meted against her. Nor was she even reprimanded when she allegetalked "in a shouting or yelling manner with the Acting Manager of NASECO’s Building Maintenance and Services Department in 1980, 2when she allegedly "shouted" at NASECO’s Corporate Auditor "in front of his subordinates displaying arrogance and unruly behavior

1980, or when she allegedly shouted at NASECO’s Internal Control Consultant in 1981. 25 But then, in sharp contrast to NASECO’s pench

for ignoring the aforesaid acts of misconduct, when Credo committed frequent tardiness in August and September 1983, she wreprimanded. 26

Even if the allegations of improper conduct (discourtesy to superiors) were satisfactorily proven, NASECO’s condonation thereof is gleafrom the fact that on 4 October 1983, Credo was given a salary adjustment for having performed in the job "at least [satisfactorily]," 27 she was then rated "Very Satisfactory" 28 as regards job performance, particularly in terms of quality of work, quantity of wodependability, cooperation, resourcefulness and attendance.

Considering that the acts or omissions for which Credo’s employment was sought to be legally terminated were insufficiently p roved, a

justify dismissal, reinstatement is proper For "absent the reason which gave rise to *the employee’s+ separation from employment, therno intention on the part of the employer to dismiss the employee concerned." 29 And, as a result of having been wrongfully dismisCredo is entitled to three (3) years of backwages without deduction and qualification. 30

However, while Credo’s dismissal was effected without procedural fairness, an award of exemplary damages in her favor can onl yjustified if her dismissal was effected in a wanton, fraudulent, oppressive or malevolent manner. 31 A judicious examination of the recmanifests no such conduct on the part of management. However, in view of the attendant circumstances in the case, i.e., lack of process in effecting her dismissal, it is reasonable to award her moral damages. And, for having been compelled to litigate because of unlawful actuations of NASECO, a reasonable award for attorney’s fees in her favor is in order.

n NASECO’s comment 32 in G.R. No. 70295, it is belatedly argued that the NLRC has no jurisdiction to order Credo’s reinstatement. NAS

claims that, as a government corporation (by virtue of its being a subsidiary of the National Investment and Development Corporat

(NIDC), a subsidiary wholly owned by the Philippine National Bank (PNB), which in turn is a government owned corporation), the terms conditions of employment of its employees are governed by the Civil Service Law, rules and regulations. In support of this argumNASECO cites National Housing Corporation v. Juco, 33 where this Court held that "There should no longer be any question at this time temployees of government-owned or controlled corporations are governed by the civil service law and civil service rules regulations."cralaw virtua1aw library

t would appear that, in the interest of justice, the holding in said case should not be given retroactive effect, that is, to cases that arbefore its promulgation on 17 January 1985. To do otherwise would be oppressive to Credo and other employees similarly situabecause under the same 1973 Constitution but prior to the ruling in National Housing Corporation v. Juco, this Court had recognized applicability of the Labor Code to, and the authority of the NLRC to exercise jurisdiction over, disputes involving terms and conditionemployment in government-owned or controlled corporations, among them, the National Service Corporation (NASECO). 34

Furthermore, in the matter of coverage by the civil service of government-owned or controlled corporations, the 1987 Constitution sta

varies from the 1973 Constitution, upon which National Housing Corporation v. Juco is based. Under the 1973 Constitution, it was provithat:jgc:chanrobles.com.ph

"The civil service embraces every branch, agency, subdivision, and instrumentality of the Government, including every government-owor controlled corporation . . ." 35

On the other hand, the 1987 Constitution provides that:jgc:chanrobles.com.ph

"The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-ownecontrolled corporations with original charter." 36 (Emphasis supplied)

Thus, the situations sought to be avoided by the 1973 Constitution and expressed by the Court in the National Housing Corporation cas

the following manner —



"The infirmity of the respondents’ position lies in its permitting a circumvention or emasculation of Section 1, Article XII -B of Constitution. It would be possible for a regular ministry of government to create a host of subsidiary corporations under the CorporatCode funded by a willing legislature. A government-owned corporation could create several subsidiary corporations. These subsidcorporations would enjoy the best of two worlds. Their officials and employees would be privileged individuals, free from the staccountability required by the Civil Service Decree and the regulations of the Commission on Audit. Their incomes would not be subjecthe competitive restrains of the open market nor to the terms and conditions of civil service employment. Conceivably, all governmowned or controlled corporations could be created, no longer by special charters, but through incorporations under the general law. Constitutional amendment including such corporations in the embrace of the civil service would cease to have application. Certainly, susituation cannot be allowed to exist." 37

appear relegated to relative insignificance by the 1987 Constitutional provision that the Civil Service embraces government-ownedcontrolled corporations with original charter; and, therefore, by clear implication, the Civil Service does not include government-ownecontrolled corporations which are organized as subsidiaries of government-owned or controlled corporations under the gencorporation law.

The proceedings in the 1986 Constitutional Commission also shed light on the Constitutional intent and meaning in the use of the phr"with original charter." Thus

"THE PRESIDING OFFICER (Mr. Trenas) Commissioner Romulo is recognized.

MR. ROMULO. I beg the indulgence of the Committee. I was reading the wrong provision.

refer to Section 1, subparagraph 1 which reads:chanrob1es virtual 1aw library

The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including government-ownedcontrolled corporations.

My query: Is Philippine Airlines covered by this provision?

MR. FOZ. Will the Commissioner please state his previous question?

MR. ROMULO. The phrase on line 4 of Section 1, subparagraph 1, under the Civil Service Commission, says: "including government-owor controlled corporations." Does that include a corporation, like the Philippine Airlines which is government-owned or controlled?

MR. FOZ. I would like to throw a question to the Commissioner. Is the Philippine Airlines controlled by the government in the sense thatmajority of stocks are owned by the government?

MR. ROMULO. It is owned by the GSIS. So, this is what we might call a tertiary corporation. The GSIS is owned by the government. Wothis be covered because the provision says "including government-owned or controlled corporations."cralaw virtua1aw library

MR. FOZ. The Philippine Airlines was established as a private corporation. Later on, the government, through the GSIS, acquired controlling stocks. Is that not the correct situation?

MR. ROMULO. That is true as Commissioner Ople is about to explain. There was apparently a Supreme Court decision that destroyed tdistinction between a government-owned corporation created under the Corporation Law and a government-owned corporation creaby its own charter.

MR. FOZ. Yes, we recall the Supreme Court decision in the case of NHA v. Juco to the effect that all government corporations irrespectivthe manner of creation, whether by special charter or by the private Corporation Law, are deemed to be covered by the civil serbecause of the wide-embracing definition made in this section of the existing 1973 Constitution. But we recall the response to the quesof Commissioner Ople that our intendment in this provision is just to give a general description of the civil service. We are not here to many declaration as to whether employees of government-owned or controlled corporations are barred from the operation of laws, suchthe Labor Code of the Philippines.

MR. ROMULO. Yes.

MR. OPLE. May I be recognized, Mr. Presiding Officer, since my name has been mentioned by both sides.

MR. ROMULO. I yield part of my time.



THE PRESIDING OFFICER (Mr. Trenas). Commissioner Ople is recognized.

MR. OPLE. In connection with the coverage of the Civil Service Law in Section 1(1), may I volunteer some information that may be helboth to the interpellator and to the Committee. Following the proclamation of martial law on September 21, 1972, this issue of coverage of the Labor Code of the Philippines and of the Civil Service Law almost immediately arose. I am, in particular, referring to period following the coming into force and effect of the Constitution of 1973, where the Article on the Civil Service was supposed to tmmediate force and effect. In the case of LUZTEVECO, there was a strike at the time. This was a government-controlled and governm

owned corporation. I think it was owned by the PNOC with just the minuscule private shares left. So, the Secretary of Justice at that tiSecretary Abad Santos, and myself sat down, and the result of that meeting was an opinion of the Secretary of Justice — which becbinding immediately on the government — that government corporations with original charters, such as the GSIS, were covered by the

Service Law and corporations spun off from the GSIS, which we called second generation corporations functioning as private subsidiarwere covered by the Labor Code. Samples of such second generation corporations were the Philippine Airlines, the Manila Hotel andHyatt. And that demarcation worked very well. In fact, all of these companies I have mentioned as examples, except for the Manila Hohad collective bargaining agreements. In the Philippine Airlines, there were, in fact, three collective bargaining agreements; one, for ground people or the PALIA; one, for the flight attendants or the PASAC; and one for the pilots of the ALPAC. How then could a corporaike that be covered by the Civil Service law? But, as the Chairman of the Committee pointed out, the Supreme Court decision in the cas

NHA v. Juco unrobed the whole thing. Accordingly, the Philippine Airlines, the Manila Hotel and the Hyatt are now considered under decision covered by the Civil Service Law. I also recall that in the emergency meeting of the Cabinet convened for this purpose at nitiative of the Chairman of the Reorganization Commission, Armand Fabella, they agreed to allow the CBAs to lapse before applying

full force and effect of the Supreme Court decision. So, we were in the awkward situation when the new government took over. I can agwith Commissioner Romulo when he said that this is a problem which I am not exactly sure we should address in the deliberations on Civil Service Law or whether we should be content with what the Chairman said — that Section 1 (1) of the Article on the Civil Service is a general description of the coverage of the Civil Service and no more.

Thank you, Mr. Presiding Officer.

MR. ROMULO. Mr. Presiding Officer, for the moment, I would be satisfied if the Committee puts on records that it is not their intent by provision and the phrase "including government-owned or controlled corporations" to cover such companies as the Philippine Airlines.

MR. FOZ. Personally, that is my view. As a matter of fact, when this draft was made, my proposal was really to eliminate, to drop from provision, the phrase "including government-owned or controlled corporations."cralaw virtua1aw library

MR. ROMULO. Would the Committee indicate that that is the intent of this provision?

MR. MONSOD. Mr. Presiding Officer, I do not think the Committee can make such a statement in the face of an absolute exclusion

government-owned or controlled corporations. However, this does not preclude the Civil Service Law to prescribe different rules procedures, including emoluments for employees of proprietary corporations, taking into consideration the nature of their operations.t is a general coverage but it does not preclude a distinction of the rules between the two types of enterprises.

MR. FOZ. In other words, it is something that should be left to the legislature to decide. As I said before, this is just a general descriptand we are not making any declaration whatsoever.

MR. MONSOD. Perhaps if Commissioner Romulo would like a definitive understanding of the coverage and the Gentleman wants to exclgovernment-owned or controlled corporations like Philippine Airlines, then the recourse is to offer an amendment as to the coverage, ifCommissioner does not accept the explanation that there could be a distinction of the rules, including salaries and emoluments.

MR. ROMULO. So as not to delay the proceedings, I will reserve my right to submit such an amendment.

x x x

THE PRESIDING OFFICE (Mr. Trenas) Commissioner Romulo is recognized.

MR. ROMULO. On page 2, line 5, I suggest the following amendment after "corporations" : Add a comma (,) and the phrase EXCEPT THOEXERCISING PROPRIETARY FUNCTIONS.

THE PRESIDING OFFICER (Mr. Trenas). What does the Committee say?

SUSPENSION OF SESSION



MR. MONSOD. May we have a suspension of the session?

THE PRESIDING OFFICER (Mr. Trenas). The session is suspended.

t was 7:16 p.m.

RESUMPTION OF SESSION

At 7:21 p.m., the session was resumed.

THE PRESIDING OFFICER (Mr. Trenas). The session is resumed.

Commissioner Romulo is recognized.

MR. ROMULO. Mr. Presiding Officer, I am amending my original proposed amendment to now read as follows: "including governmowned or controlled corporations WITH ORIGINAL CHARTERS." The purpose of this amendment is to indicate that government corporatsuch as the GSIS and SSS, which have original charters, fall within the ambit of the civil service. However, corporations which subsidiaries of these chartered agencies such as the Philippine Airlines, Manila Hotel and Hyatt are excluded from the coverage of the cservice.

THE PRESIDING OFFICER (Mr. Trenas). What does the Committee say?

MR. FOZ. Just one question, Mr. Presiding Officer. By the term "original charters," what exactly do we mean?

MR. ROMULO. We mean that they were created by law, by an act of Congress, or by special law.

MR. FOZ. And not under the general corporation law.

MR. ROMULO. That is correct. Mr. Presiding Officer.

MR. FOZ. With that understanding and clarification, the Committee accepts the amendment.

MR. NATIVIDAD. Mr. Presiding Officer, so those created by the general corporation law are out.

MR. ROMULO. That is correct." 38

On the premise that it is the 1987 Constitution that governs the instant case because it is the Constitution in place at the time of decisthereof, the NLRC has jurisdiction to accord relief to the parties. As an admitted subsidiary of the NIDC, in turn a subsidiary of the PNB,NASECO is a government-owned or controlled corporation without original charter.

Dr. Jorge Bocobo, in his Cult of Legalism, cited by Mr. Justice Perfecto in his concurring opinion in Gomez v. Government Insurance Board602, March 31, 1947, 44 O. G. No. 8, pp. 2687, 2694; also published in 78 Phil. 221) on the effectivity of the principle of social justembodied in the 1935 Constitution, said:jgc:chanrobles.com.ph

"Certainly, this principle of social justice in our Constitution as generously conceived and so tersely phrased, was not included in fundamental law as a mere popular gesture. It was meant to (be) a vital, articulate, compelling principle of public policy. It shouldobserved in the interpretation not only of future legislation, but also of all laws already existing on November 15, 1935. It was intendedchange the spirit of our laws, present and future. Thus, all the laws which on the great historic event when the Commonwealth of

Philippines was born, were susceptible of two interpretations — strict or liberal, against or in favor of social justice, now have toconstrued broadly in order to promote and achieve social justice. This may seem novel to our friends, the advocates of legalism, but it isonly way to give life and significance to the above-quoted principle of the Constitution. If it was not designed to apply to these exisaws, then it would be necessary to wait for generations until all our codes and all our statutes shall have been completely changed

removing every provision inimical to social justice, before the policy of social justice can become really effective. That would be an absconclusion. It is more reasonable to hold that this constitutional principle applies to all legislation in force on November 15, 1935, andaws thereafter passed."cralaw virtua1aw library

WHEREFORE, in view of the foregoing, the challenged decision of the NLRC is AFFIRMED with modifications. Petitioners in G.R. No. 698who are the private respondents in G.R. No. 70295, are ordered to: 1) reinstate Eugenia C. Credo to her former position at the time of termination, or if such reinstatement is not possible, to place her in a substantially equivalent position, with three (3) years backwafrom 1 December 1983, without qualification or deduction, and without loss of seniority rights and other privileges appertaining ther

and 2) pay Eugenia C. Credo P5,000.00 for moral damages and P5,000.00 for attorney’s fees.



f reinstatement in any event is no longer possible because of supervening events, petitioners in G.R. No. 69870, who are the privrespondents in G.R. No. 70295 are ordered to pay Eugenia C. Credo, in addition to her backwages and damages as above describseparation pay equivalent to one-half month’s salary for every year of service, to be computed on her monthl y salary at the time oftermination on 1 December 1983.

SO ORDERED.

Fernan (C.J.), Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur

Narvasa, J., on leave.

Gutierrez, Jr., J., in the result.

Cruz, J., see separate concurrence.

[G.R. No. 71818. August 19, 1986.]

METROPOLITAN WATERWORKS AND SEWERAGE SYSTEM (MWSS), Petitioner, v. HON. BIENVENIDO S. HERNANDEZ, Labor ArbiNATIONAL LABOR RELATIONS COMMISSION, LEMUEL B. ALEGADO, DANILO S. LOPEZ, FORTUNATO L. MADRONA, ETC., ET AL., Responde

Ariel F. Aguirre for Petitioner.

Celso A. Fernandez for Private Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; CIVIL SERVICE LAW; GOVERNS EMPLOYEES OF GOVERNMENT-OWNED OR CONTROLLED CORPORATIONRepublic Act No. 6234 created it as a "government corporation to be known as the Metropolitan Waterworks and Sewerage System." Athe case of the National Housing Authority, therefore, employment in the MWSS is governed not by the Labor Code but by the civil seraw, rules and regulations; and controversies arising from or connected with that employment are not cognizable by the National La

Relations Commission.

2. ID.; ID.; ID.; INCLUDES CONTRACTUAL EMPLOYEES OF GOVERNMENT-OWNED OR CONTROLLED CORPORATION. — The argument ofLabor Arbiter that it is only disputes between the MWSS and its regular employees that are beyond the jurisdiction of the NLRC, not thbetween it and its "non-regular or contractual" employees, is sophistical. There is no legal or logical justification for such a distinctndeed, it is ruled out by the fact that positions in the civil service are classified into career and non-career service, and that the non-car

service includes inter alia —." . . Contractual personnel or those whose employment in the government is in accordance with a specontract to undertake a specific work or job, requiring special of technical skills not available in the employing agency, to be accompliswithin a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work of job, under his oresponsibility with a minimum of direction and supervision from the hiring agency."

D E C I S I O N

NARVASA, J.:

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



(1) it "is a government-owned and controlled corporation and therefore . . . (the NLRC) has no jurisdiction over the . . . case", andassuming the contrary arguendo, "the terms and conditions of the complainants who are all contractual employees are governed by threspective contracts." 2

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

". . . This Commission agree (sic) with the respondent that if the complainants are regular employees of MWSS, it being a governmeowned and controlled corporation, said employees are within the mantle of the civil service rules and regulations, their salariesstandardized by the National Assembly, then this Commission has no jurisdiction in the case. 3 . . . (But an examination of the reco

shows) . . . that complainants are not a regular employee of the respondent MWSS, but one of a hired workers or employees for a limperiod, that is upon completion of the project for which they were hired, they can be removed by the respondent, because there is no mwork or the contract has already been terminated (sic)." 4

The proferred deduction: while controversies respecting terms and conditions of employment between MWSS and its regular employare not within the jurisdiction of the NLRC, said controversies do fall within the competence of the NLRC if they involve non-regulacontractual employees of the MWSS.

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

"Respondent (MWSS) is citing Article 277 of the Labor Code to vouchsafe (sic) its contention about the lack of jurisdiction of the NLRC.

provision, however, refers to the governance of the Civil Service Law vis-a-vis the terms and conditions of government employees, thosgovernment corporations included. The complaint is not such a case as it is for monetary claims about which the Civil Service Decree,807 does not provide. In fact, the last provision of Article 277 shows the ever protection (sic) by the State through the Code of t he work

right to due wages and other benefits by enjoining not to reduce the privileges being enjoyed by workers at the time of the a doption ofCode." 7

The propounded deduction: The Civil Service Decree applies to employees in government corporations in all matters except "moneclaims" ; as regards the latter, it is the Labor Code that governs.

t is to invalidate the decision of the Labor Arbiter as well as a subsequent order directing execution thereof 8 and all other proceedingthe case 9 that MWSS has come to this Court on certiorari and prohibition.

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

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

1) "The NHC is a one hundred percent (100%) government-owned corporation . . .; 11

2) "There should no longer be any question at this time that employees of government-owned or controlled corporations are governedthe civil service law and civil service rules and regulations" ; 12 and

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

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

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

". . . Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a spe

work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, whic



no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimumdirection and supervision from the hiring agency." 15

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

But even more fallacious, almost unintelligible, is private respondents’ contention that they "are not employees of Metropol

Waterworks and Sewerage System (MWSS)" ; 16 and "not being employees of the petitioner . . . (MWSS) . . . this case therefore lies withe National Labor Relations Commission (NLRC) through Arbiter Bienvenido Hernandez." 17 Such a contention also does not mrefutation. As absurd and as undeserving of response, too, is the claim that "Existence of employer-employee relationship (between

MWSS and an individual) is not per se equivalent to being a government employee." 18

Arguments such as these, and the fractured syntax by which they are tendered, should really have no place in a judicial record. They canpersuade; they do but irritate. What is worse, they produce much waste of valuable time. They are symptomatic of defects in the trainand appointing processes which must be remedied.

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

SO ORDERED.

Teehankee, C.J., Feria, Yap, Fernan, Melencio-Herrera, Alampay, Gutierrez, Jr., Cruz and Paras, JJ., concur.

THE CIVIL SERVICE G.R. No. 168766

COMMISSION,

Petitioner, Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

- versus - CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

REYES,

LEONARDO-DE CASTRO, and

BRION, JJ.



Promulgated:

HENRY A. SOJOR,

Respondent. May 22, 2008

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

D E C I S I O N

REYES, R.T., J.:

IS the president of a state university outside the reach of the disciplinary jurisdiction constitutionally granted to the Civil SerCommission (CSC) over all civil servants and officials?

Does the assumption by the CSC of jurisdiction over a president of a state university violate academic freedom?

The twin questions, among others, are posed in this petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) whannulled two (2) CSC Resolutions[2] against respondent Henry A. Sojor.

The Facts

The uncontroverted facts that led to the controversy, as found by the CSC and the CA, are as follows:

On August 1, 1991, respondent Sojor was appointed by then President Corazon Aquino as president of the Central Visayas PolytecCollege (CVPC) in Dumaguete City. In June 1997, Republic Act (R.A.) No. 8292, or the “Higher Education Modernization Act of 1997,”

enacted. This law mandated that a Board of Trustees (BOT) be formed to act as the governing body in state colleges. The BOT of Cappointed respondent as president, with a four-year term beginning September 1998 up to September 2002.[3] Upon the expiration ofirst term of office in 2002, he was appointed president of the institution for a second four-year term, expiring on September 24, 2006.[4



On June 25, 2004, CVPC was converted into the Negros Oriental State University (NORSU).[5] A Board of Regents (BOR) succeethe BOT as its governing body.

Meanwhile, three (3) separate administrative cases against respondent were filed by CVPC faculty members before the CSC Regional Of(CSC-RO) No. VII in Cebu City, to wit:

1. ADMC DC No. 02-20(A) – Complaint for dishonesty, grave misconduct and conduct prejudicial to the best interest of the service filedJune 26, 2002 by Jose Rene A. Cepe and Narciso P. Ragay. It was alleged that respondent approved the release of salary differendespite the absence of the required Plantilla and Salary Adjustment Form and valid appointments.[6]

2. ADM DC No. 02-20 – Complaint for dishonesty, misconduct and falsification of official documents filed on July 10, 2002 by JoceJuanon and Carolina Fe Santos. The complaint averred that respondent maliciously allowed the antedating and falsification of reclassification differential payroll, to the prejudice of instructors and professors who have pending request for adjustment of tacademic ranks.[7]

3. ADM DC No. 02-21 – Complaint for nepotism filed on August 15, 2002 by Rose Marie Palomar, a former part-time instructor of CVPCwas alleged that respondent appointed his half-sister, Estrellas Sojor-Managuilas, as casual clerk, in violation of the provisions aganepotism under the Administrative Code.[8]

Before filing his counter-affidavits, respondent moved to dismiss the first two complaints on grounds of lack of jurisdiction, baprior judgment and forum shopping.

He claimed that the CSC had no jurisdiction over him as a presidential appointee. Being part of the non-competitive or unclassified serof the government, he was exclusively under the disciplinary jurisdiction of the Office of the President (OP). He argued that CSC hadauthority to entertain, investigate and resolve charges against him; that the Civil Service Law contained no provisions on the investigatdiscipline, and removal of presidential appointees. He also pointed out that the subject matter of the complaints had already been resoby the Office of the Ombudsman.[9]

Finding no sufficient basis to sustain respondent’s arguments, the CSC -RO denied his motion to dismiss in its Resolution daSeptember 4, 2002.[10] His motion for reconsideration[11] was likewise denied. Thus, respondent was formally charged with th

administrative cases, namely: (1) Dishonesty, Misconduct, and Falsification of Official Document; (2) Dishonesty, Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service; and (3) Nepotism.[12]

Respondent appealed the actions of the regional office to the Commission proper (CSC), raising the same arguments in his motiondismiss.[13] He argued that since the BOT is headed by the Committee on Higher Education Chairperson who was under the OP, the was also under the OP. Since the president of CVPC was appointed by the BOT, then he was a presidential appointee. On the matter ofjurisdiction granted to

CSC by virtue of Presidential Decree (P.D.) No. 807[14] enacted in October 1975, respondent contended that this was superseded by provisions of R.A. No. 8292,[15] a later law which granted to the BOT the power to remove university officials.



CSC Disposition

In a Resolution dated March 30, 2004,*16+ the CSC dismissed respondent’s appeal and authorized its regional office to proceed wthe investigation. He was also preventively suspended for 90 days. The fallo of the said resolution states:

WHEREFORE, the appeal of Henry A. Sojor, President of Central Visayas Polytechnic College, is hereby DISMISSED. The Civil SerCommission Regional Office No. VII, Cebu City, is authorized to proceed with the formal investigation of the cases against Sojor and subthe investigation reports to the Commission within one hundred five (105) days from receipt hereof. Finally, Sojor is preventisuspended for ninety (90) days.[17]

In decreeing that it had jurisdiction over the disciplinary case against respondent, the CSC opined that his claim that he wapresidential appointee had no basis in fact or in law. CSC maintained that it had concurrent jurisdiction with the BOT of the CVPC. quote:

His appointment dated September 23, 2002 was signed by then Commission on Higher Education (CHED) Chairman Ester A. GaMoreover, the said appointment expressly stated that it was approved and adopted by the Central Visayas Polytechnic College BoarTrustees on August 13, 2002 in accordance with Section 6 of Republic Act No. 8292 (Higher education Modernization Act of 1997), wexplicitly provides that, “He (the president of a state college) shall be appointed by the Board of Regents/Trustees, upon re commendaof a duly constituted search committee.” Since the President of a state college is appointed by the Board of Regents/Trustees of the colconcerned, it is crystal clear that he is not a presidential appointee. Therefore, it is without doubt that Sojor, being the President of a scollege (Central Visayas Polytechnic College), is within the disciplinary jurisdiction of the Commission.

The allegation of appellant Sojor that the Commission is bereft of disciplinary jurisdiction over him since the same is exclusiv

odged in the CVPC Board of Trustees, being the appointing authority, cannot be considered. The Commission and the CVPC BoarTrustees have concurrent jurisdiction over cases against officials and employees of the said agency. Since the three (3) complaints agaSojor were filed with the Commission and not with the CVPC, then the former already acquired disciplinary jurisdiction over the appelto the exclusion of the latter agency.[18] (Emphasis supplied)

The CSC categorized respondent as a third level official, as defined under its rules, who are under the jurisdiction of the Commission proNevertheless, it adopted the formal charges issued by its regional office and ordered it to proceed with the investigation:

Pursuant to the Uniform Rules on Administrative Cases in the Civil Service, Sojor, being a third level official, is within the disciplin

jurisdiction of the Commission Proper. Thus, strictly speaking, the Commission has the sole jurisdiction to issue the formal charge agaSojor. x x x However, since the CSC RO No. VII already issued the formal charges against him and found merit in the said formal charthe same is adopted. The CSC RO No. VII is authorized to proceed with the formal investigation of the case against Sojor in accordance wthe procedure outlined in the aforestated Uniform Rules.[19] (Emphasis supplied)

No merit was found by the CSC in respondent’s motion for reconsideration and, accordingly, denied it with finality on July 6, 2004.

Respondent appealed the CSC resolutions to the CA via a petition for certiorari and prohibition. He alleged that the CSC acted with

or in excess of its jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the assa



resolutions; that CSC encroached upon the academic freedom of CVPC; and that the power to remove, suspend, and discipline president of CVPC was exclusively lodged in the BOT of CVPC.

CA Disposition

On September 29, 2004, the CA issued a writ of preliminary injunction directing the CSC to cease and desist from enforcingResolution dated March 30, 2004 and Resolution dated July 6, 2004.[21] Thus, the formal investigation of the administrative chaagainst Sojor before the CSC-RO was suspended.

On June 27, 2005, after giving both parties an opportunity to air their sides, the CA resolved in favor of respondent. It annulledquestioned CSC resolutions and permanently enjoined the CSC from proceeding with the administrative investigation. The dispositive of the CA decision reads:

WHEREFORE, in view of all the foregoing, and finding that the respondent Civil Service Commission acted without jurisdictiossuing the assailed Resolution Nos. 040321 and 040766 dated March 20, 2004 and July 6, 2004, respectively, the same are her

ANNULLED and SET ASIDE. The preliminary injunction issued by this Court on September 29, 2004 is hereby made permanent.

SO ORDERED.[22]

The CA ruled that the power to appoint carries with it the power to remove or to discipline. It declared that the enactment of R.A.9299[23] in 2004, which converted CVPC into NORSU, did not divest the BOT of the power to discipline and remove its faculty memb

administrative officials, and employees. Respondent was appointed as president of CVPC by the BOT by virtue of the authority granted under Section 6 of R.A. No. 8292.[24] The power of the BOT to remove and discipline erring employees, faculty members, administrative officials as expressly provided for under Section 4 of R.A. No. 8292 is also granted to the BOR of NORSU under Section 7R.A. No. 9299. The said provision reads:

Power and Duties of Governing Boards. – The governing board shall have the following specific powers and duties in addition to its genpowers of administration and exercise of all the powers granted to the board of directors of a corporation under Section 36 of BaPambansa Blg. 68, otherwise known as the Corporation Code of the Philippines:

x x x x

to fix and adjust salaries of faculty members and administrative officials and employees x x x; and to remove them for cause in accordawith the requirements of due process of law. (Emphasis added)



The CA added that Executive Order (E.O.) No. 292,[25] which grants disciplinary jurisdiction to the CSC over all branches, subdivisinstrumentalities, and agencies of the government, including government-owned or controlled corporations with original charters,

general law. According to the appellate court, E.O. No. 292 does not prevail over R.A. No. 9299,[26] a special law.

ssues

Petitioner CSC comes to Us, seeking to reverse the decision of the CA on the ground that THE COURT OF APPEALS GRAVELY ERREDHOLDING THAT PETITIONER ACTED WITHOUT JURISDICTION IN ISSUING RESOLUTION NO. 040321 DATED MARCH 30, 2004 ARESOLUTION NO. 04766 DATED JULY 6, 2004.[27]

Our Ruling

The petition is meritorious.

. Jurisdiction of the CSC

The Constitution grants to the CSC administration over the entire civil service.[28] As defined, the civil service embraces every bra

agency, subdivision, and instrumentality of the government, including every government-owned or controlled corporation.[29] It is furclassified into career and non-career service positions. Career service positions are those where: (1) entrance is based on merit and fitnor highly technical qualifications; (2) there is opportunity for advancement to higher career positions; and (3) there is security of tenThese include:

(1) Open Career positions for appointment to which prior qualification in an appropriate examination is required;

(2) Closed Career positions which are scientific, or highly technical in nature; these include the faculty and academic staff of state colleand universities, and scientific and technical positions in scientific or research institutions which shall establish and maintain their o

merit systems;

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

(4) Career officers, other than those in the Career Executive Service, who are appointed by the President, such as the Foreign SerOfficers in the Department of Foreign Affairs;



(5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system;

(6) Personnel of government-owned or controlled corporations, whether performing governmental or proprietary functions, who dofall under the non-career service; and

(7) Permanent laborers, whether skilled, semi-skilled, or unskilled.[30]

Career positions are further grouped into three levels. Entrance to the first two levels is determined through competitive examinatiwhile entrance to the third level is prescribed by the Career Executive Service Board.[31] The positions covered by each level are:

(a) The first level shall include clerical, trades, crafts, and custodial service positions which involve non-professional or subprofessiwork in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;

(b) The second level shall include professional, technical, and scientific positions which involve professional, technical, or scientific woa non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and

(c) The third level shall cover positions in the Career Executive Service.[32]

On the other hand, non-career service positions are characterized by: (1) entrance not by the usual tests of merit and fitness; and (2) tenwhich is limited to a period specified by law, coterminous with the appointing authority or subject to his pleasure, or limited to the duraof a particular project for which purpose employment was made.[33] The law states:

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 personaconfidential 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 spe

work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, whic



no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimumdirection and supervision from the hiring agency; and

(5) Emergency and seasonal personnel.[34]

t is evident that CSC has been granted by the Constitution and the Administrative Code jurisdiction over all civil service positions in government service, whether career or non-career. From this grant of general jurisdiction, the CSC promulgated the Revised Uniform Ron Administrative Cases in the Civil Service.[35] We find that the specific jurisdiction, as spelled out in the CSC rules, did not depart fthe general jurisdiction granted to it by law. The jurisdiction of the Regional Office of the CSC and the Commission central o(Commission Proper) is specified in the CSC rules as:

Section 4. Jurisdiction of the Civil Service Commission. – The Civil Service Commission shall hear and decide administrative cases instituby, or brought before it, directly or on appeal, including contested appointments, and shall review decisions and actions of its offices anthe agencies attached to it.

Except as otherwise provided by the Constitution or by law, the Civil Service Commission shall have the final authority to pass upon removal, separation and suspension of all officers and employees in the civil service and upon all matters relating to the conduct, discipand efficiency of such officers and employees.

Section 5. Jurisdiction of the Civil Service Commission Proper. – The Civil Service Commission Proper shall have jurisdiction over following cases:

A. Disciplinary

1. Decisions of Civil Service Regional Offices brought before it on petition for review;

2. Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities, imposing penalties exceethirty days suspension or fine in an amount exceeding thirty days salary brought before it on appeal;

3. Complaints brought against Civil Service Commission Proper personnel;

4. Complaints against third level officials who are not presidential appointees;

5. Complaints against Civil Service officials and employees which are not acted upon by the agencies and such other complaints requ

direct or immediate action, in the interest of justice;

6. Requests for transfer of venue of hearing on cases being heard by Civil Service Regional Offices;

7. Appeals from the Order of Preventive Suspension; and

8. Such other actions or requests involving issues arising out of or in connection with the foregoing enumerations.

B. Non-Disciplinary

1. Decisions of Civil Service Commission Regional Offices brought before it;



2. Requests for favorable recommendation on petition for executive clemency;

3. Protests against the appointment, or other personnel actions, involving third level officials; and

4. Such other analogous actions or petitions arising out of or in relation with the foregoing enumerations.

Section 6. Jurisdiction of Civil Service Regional Offices. – The Civil Service Commission Regional Offices shall have jurisdiction over

following cases:

A. Disciplinary

1. Complaints initiated by, or brought before, the Civil Service Commission Regional Offices provided that the alleged acts or omisswere committed within the jurisdiction of the Regional Office, including Civil Service examination anomalies or irregularities and persons complained of are employees of agencies, local or national, within said geographical areas;

2. Complaints involving Civil Service Commission Regional Office personnel who are appointees of said office; and

3. Petitions to place respondent under Preventive Suspension.

B. Non-Disciplinary

1. Disapproval of appointments brought before it on appeal;

2. Protests against the appointments of first and second level employees brought before it directly or on appeal. (Emphasis supplied)

Respondent, a state university president with a fixed term of office appointed by the governing board of trustees of the university,

non-career civil service officer. He was appointed by the chairman and members of the governing board of CVPC. By clear provision of respondent is a non-career civil servant who is under the jurisdiction of the CSC.

I. The power of the BOR to discipline officials and employees is not exclusive. CSC has concurrent jurisdiction over a president of a stuniversity.

Section 4 of R.A. No. 8292, or the Higher Education Modernization Act of 1997, under which law respondent was appointed duringtime material to the present case, provides that the school’s governing board shall have the general powers of administration granted corporation. In addition, Section 4 of the law grants to the board the power to remove school faculty members, administrative offic

and employees for cause:

Section 4. Powers and Duties of Governing Boards. – The governing board shall have the following specific powers and duties in additiots general powers of administration and the exercise of all the powers granted to the board of directors of a corporation under Section

of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines:

x x x x



h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the provisions of the revcompensation and classification system and other pertinent budget and compensation laws governing hours of service, and such oduties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it mpromulgate, any provisions of existing law to the contrary not withstanding; and to remove them for cause in accordance with requirements of due process of law. (Emphasis supplied)

The above section was subsequently reproduced as Section 7(i) of the succeeding law that converted CVPC into NORSU, R.A.

9299. Notably, and in contrast with the earlier law, R.A. No. 9299 now provides that the administration of the university and exerciscorporate powers of the board of the school shall be exclusive:

Sec. 4. Administration. – The University shall have the general powers of a corporation set forth in Batas Pambansa Blg. 68, as amendotherwise known as “The Corporation Code of the Philippines.” The administration of the University and the exercise of its corpo

powers shall be vested exclusively in the Board of Regents and the president of the University insofar as authorized by the Board.

Measured by the foregoing yardstick, there is no question that administrative power over the school exclusively belongs to its BBut does this exclusive administrative power extend to the power to remove its erring employees and officials?

n light of the other provisions of R.A. No. 9299, respondent’s argument that the BOR has exclusive power to remove its university offic

must fail. Section 7 of R.A. No. 9299 states that the power to remove faculty members, employees, and officials of the university is granto the BOR “in addition to its general powers of administration.” This provision is essentially a reproduction of Section 4 of its predecesR.A. No. 8292, demonstrating that the intent of the lawmakers did not change even with the enactment of the new law. For clarity, the of the said section is reproduced below:

Sec. 7. Powers and Duties of the Board of Regents. – The Board shall have the following specific powers and duties in addition to its genpowers of administration and the exercise of all the powers granted to the Board of Directors of a corporation under existing laws:

x x x x

. To fix and adjust salaries of faculty members and administrative officials and employees, subject to the provisions of the RevCompensation and Position Classification System and other pertinent budget and compensation laws governing hours of service and sother duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it m

promulgate, any provision of existing law to the contrary notwithstanding; and to remove them for cause in accordance with requirements of due process of law.[36] (Emphasis supplied)

Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive in the mattedisciplining and removing its employees and officials.

Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees and officials, there isshowing that such power is exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases invol



specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested withsame jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.[37]

All members of the civil service are under the jurisdiction of the CSC, unless otherwise provided by law. Being a non-career civil serdoes not remove respondent from the ambit of the CSC. Career or non-career, a civil service official or employee is within the jurisdicof the CSC.

This is not a case of first impression.

In University of the Philippines v. Regino,[38] this Court struck down the claim of exclusive jurisdiction of the UP BOR to disciplinemployees. The Court held then:

The Civil Service Law (PD 807) expressly vests in the Commission appellate jurisdiction in administrative disciplinary cases involvmembers of the Civil Service. Section 9(j) mandates that the Commission shall have the power to “hear and decide administra

disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal.” And Section 37(a) provides that, “

Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more tthirty (30) days, or fine in an amount exceeding thirty days’ salary, demotion in rank or salary or transfer, removal or dismissal from offi

(Emphasis supplied)

Under the 1972 Constitution, all government-owned or controlled corporations, regardless of the manner of their creation, wconsidered part of the Civil Service. Under the 1987 Constitution, only government-owned or controlled corporations with original charfall within the scope of the Civil Service pursuant to Article IX-B, Section 2(1), which states:

“The Civil Service embraces all branches, subdivisions, instrumentalities, and agencies of the government, including governmowned or controlled corporations with original charters.”

As a mere government-owned or controlled corporation, UP was clearly a part of the Civil Service under the 1973 Constitution now continues to be so because it was created by a special law and has an original charter. As a component of the Civil Service, Utherefore governed by PD 807 and administrative cases involving the discipline of its employees come under the appellate jurisdictiothe Civil Service Commission.[39] (Emphasis supplied)

In the more recent case of Camacho v. Gloria,[40] this Court lent credence to the concurrent jurisdiction of the CSC when it affirm

that a case against a university official may be filed either with the university’s BOR or directly with the CSC. We quote:

Further, petitioner contends that the creation of the committee by the respondent Secretary, as Chairman of the USP Board of Regewas contrary to the Civil Service Rules. However, he cites no specific provision of the Civil Service Law which was violated by respondents in forming the investigating committee. The Civil Service Rules embodied in Executive Order 292 recognize the power of Secretary and the university, through its governing board, to investigate and decide matters involving disciplinary action against offiand employees under their jurisdiction. Of course under EO 292, a complaint against a state university official may be filed either withuniversity’s Board of Regents or directly with the Civil Service Commission, although the CSC may delegate the investigation of a compand for that purpose, may deputize any department, agency, official or group of officials to conduct such investigation.[41] (Emphsupplied)



Thus, CSC validly took cognizance of the administrative complaints directly filed before the regional office, concerning violationcivil service rules against respondent.

II. Academic freedom may not be invoked when there are alleged violations of civil service laws and rules.

Certainly, academic institutions and personnel are granted wide latitude of action under the principle of academic freedom. Acadefreedom encompasses the freedom to determine who may teach, who may be taught, how it shall be taught, and who may be admittedstudy.[42] Following that doctrine, this Court has recognized that institutions of higher learning has the freedom to decide for itselfbest methods to achieve their aims and objectives, free from outside coercion, except when the welfare of the general publicrequires.[43] They have the independence to determine who to accept to study in their school and they cannot be compelledmandamus to enroll a student.[44]

That principle, however, finds no application to the facts of the present case. Contrary to the matters traditionally held to be justified twithin the bounds of academic freedom, the administrative complaints filed against Sojor involve violations of civil service rules. Hfacing charges of nepotism, dishonesty, falsification of official documents, grave misconduct, and conduct prejudicial to the best interes

the service. These are classified as grave offenses under civil service rules, punishable with suspension or even dismissal.[45]

This Court has held that the guaranteed academic freedom does not give an institution the unbridled authority to perform acts withoutstatutory basis.[46] For that reason, a school official, who is a member of the civil service, may not be permitted to commit violationcivil service rules under the justification that he was free to do so under the principle of academic freedom.

Lastly, We do not agree with respondent’s contention that his appointment to the position of president of NORSU, despite the penadministrative cases against him, served as a condonation by the BOR of the alleged acts imputed to him. The doctrine this Court laid do

n Salalima v. Guingona, Jr.[47] and Aguinaldo v. Santos[48] are inapplicable to the present circumstances. Respondents in the mentiocases are elective officials, unlike respondent here who is an appointed official. Indeed, election expresses the sovereign will of people.[49] Under the principle of vox populi est suprema lex, the re-election of a public official may, indeed, supersede a penadministrative case. The same cannot be said of a re-appointment to a non-career position. There is no sovereign will of the peoplspeak of when the BOR re-appointed respondent Sojor to the post of university president.

WHEREFORE, the petition is GRANTED. The Decision of the Court of Appeals is REVERSED and SET ASIDE. The assailed Resolutionthe Civil Service Commission are REINSTATED.

SO ORDERED.

[G.R. No. L-43182. November 25, 1986.]

MARCIAL F. SAMSON, City Mayor of Caloocan City, THE CITY TREASURER, THE CITY AUDITOR, both of Caloocan City, and HERMOGENLIWANAG, Petitioners, v. THE HONORABLE COURT OF APPEALS, CFI-RIZAL AND FELICIANO C. TALENS, Respondents.

Hermenegildo V. Lopez and Amado B. Cresini, Jr., for Petitioners.

Dominador G. Magno for Private Respondent.

SYLLABUS



1. STATUTORY CONSTRUCTION; CIVIL SERVICE LAW; EXCEPTIONS UNDER SECTION 5 THEREOF STRICTLY CONSTRUED. — As a genrule, position in all branches, subdivisions and instrumentalities of the government, including those in government owned or controcorporations, belong to the competitive service. The only exceptions are those expressly declared by law to be in the non-competiservice and those which are policy-determining, primarily confidential or highly technical in nature. (Section 3, R.A. 2260, as amendedR.A. No. 6040).. Under the rules of statutory construction, exceptions, as a general rule; should be strictly, but reasonably construed; textend only so far as their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than exception. Where a general rule is established by statute with exceptions, the court will not curtail the former nor add to the lattemplication . . . (Francisco, Statutory Construction, p. 304, citing 69 C.J., Section 643, pp. 1092-1093, Italics supplied). The except

provided for in Section 5 of Republic Act No. 2260, as amended should be, therefore, strictly construed. It follows then that on this gengoverning principle, the position of assistant secretary to the City Mayor of Caloocan City should be considered as belonging to the ncompetitive service.

2. ADMINISTRATIVE LAW; SECTION 5(F), REPUBLIC ACT NO. 2260; POSITIONS OF SECRETARY TO THE MAYOR AND ASSISTSECRETARY TO THE MAYOR DISTINGUISHED AND EXPLAINED. — It is not the powers and duties exercised and discharged by the AssistSecretary to the Mayor as may be delegated and assigned by the Mayor that makes the position of Assistant Secretary primaconfidential. While duties possibly involving confidential matters are sometimes handled by the Assistant Secretary to the Mayor, this dnot necessarily transform the nature of the position itself as one that is primarily and highly confidential. It should be stressed that position of Secretary to the Mayor and that of Assistant Secretary to the Mayor are two separate and distinct positions. While bndividuals may be called "secretary", nevertheless, one is certainly of a higher category and rank than the other with the added distinc

that a Secretary must enjoy the confidence of the Mayor. However, the position of Assistant Secretary being of a lower rank, need not cthe requisites attaching to the primarily confidential position of the actual Secretary to the Mayor. Moreover, if it was the intention

Congress to include the Assistant Secretary within the purview of Section 5(f) of R.A. No. 2260, as amended, so that Assistant Secretaare could have been easily worded "secretaries and their assistance."

3. ID.; ID.; ID. — What petitioners fail to consider is that an "assistant secretary", although described as secretary, technically diffn function from the "Secretaries." An "assistant" merely helps, aids or serves in a subordinate capacity to the person who is actu

clothed with all the duties and responsibilities Of "secretary." Needless to say, the functions strictly attributable to a "secretary" and whwould repose on such person the trust and confidence of the employer, is not automatically vested or transferred to as "assistsecretary", because the latter simply assists or aids the former in the accomplishment of his duties.

D E C I S I O N

ALAMPAY, J.:

The sole issue to be resolved in this case is the legality of Administrative Order No. 3, issued on January 10, 1972, by the then mayor MaF. Samson, of Caloocan City, one of the petitioners herein, whereby petitioner mayor summarily terminated the services of the prirespondent, Feliciano C. Talens, who held the position of Assistant Secretary to the Mayor, on the ground of "lack and loss of confidenand appointing in place of the latter Hermogenes Liwag, a co-petitioner in this case. Cited in support of the challenged administrative os section 5(f) of Republic Act No. 2260, otherwise known as the Civil Service Act of 1959, as amended. The above-cited provision decla

the position of secretaries to city mayors non-competitive and this was interpreted by herein petitioner Mayor as to include the positioAssistant Secretary to the Mayor.

n a resolution dated October 29, 1982, this Court granted the motion of the widow of private respondent to substitute the heirs of priv

respondent Feliciano C. Talens in place of respondent, in view of the latter’s death on August 28, 1982.

There is no dispute as to the factual antecedents of this case. Private respondent Feliciano C. Talens, a civil service eligible, was appoinon March 16, 1970 by then City Mayor Macario Asistio of Caloocan City, as Assistant Secretary to the Mayor. His appointment was attesto as a permanent one under Section 24(b) of Republic Act No, 2260, as amended by the Commissioner of Civil Service. He performed duties of Assistant Secretary to the Mayor and even twice received increases in salary.

On January 11, 1972, City Mayor Marcial F. Samson, who succeeded City Mayor Macario Asistio, furnished private respondent herein wthe questioned Administrative Order No. 3, which is hereunder reproduced:jgc:chanrobles.com.ph

"TO: Mr. Feliciano C. Talens

Assistant Secretary to the Mayor



Caloocan City

"Pursuant to the provision of Sec. 5(f) of R.A No. 2260, otherwise known as the Civil Service Act of 1959, as amended, making the positof Secretaries of City Mayors, among others, noncompetitive, and it being the inherent nature of your position to be primarily and higconfidential, you are hereby informed and advised that effective the closing hours of January 10, 1972, your services as Assistant Secreto the Mayor are hereby TERMlNATED for lack and loss of confidence.

"You are therefore directed to turnover all official documents, papers and all other government records to Atty. Casiano P. Anunciacion,

(SGD.) MARCIAL F. SAMSON

City Mayor" (Rollo, p. 20)

Private respondent acknowledging receipt of said order demurred on the ground that his position as Assistant Secretary to the Mayor not covered by Sec. 5(f) of the Civil Service Law, which specifies as non-competitive only the positions of "secretaries of provincial city amunicipal boards and councils" He asked that the administrative order be recalled as he was permanently appointed to a classified posin the city government and that in accordance with Section 32 of the Civil Service Law, he can be removed only for cause and after d

process has been observed.

On January 17, 1972, petitioner Mayor, in a letter-reply sent to private respondent, declined to recall Administrative Order Noreiterating the reasons set forth in the order. Consequently, a petition for certiorari, prohibition, mandamus and quo warranto was fwith the then Court of First Instance of Caloocan City on January 21, 1972 by the private respondent in order to annul the dispu

administrative order, to enjoin the petitioner mayor, treasurer and auditor from enforcing the same, and to compel all the said puofficials to pay to private respondent the salaries and emoluments due to him as Assistant Secretary to the Mayor. He also sought ouster from the disputed position of Hermogenes Liwag, one of the petitioners herein, who was appointed by Mayor Samson as AssistSecretary to the Mayor, in place of private Respondent.

The Court of First Instance ruled in favor of the plaintiff Feliciano C. Talens, by declaring Administrative Order No. 3 null and void, agranting all the aforestated reliefs claimed by Feliciano C. Talens. On Appeal of the said judgment to the Court of Appeals, the decisiothe trial court was affirmed. Hence this petition.

According to petitioners, the only issue which this Court has to resolve is the legality of the termination of private respon dent Tal

services as assistant secretary to the Mayor of Caloocan City (Petitioners’ Brief, p. 4).

Petitioners’ contention is that the termination of private respondent’s services is authorized by Section 5(f) of Republic Ac t No. 2260amended by Republic Act No. 6040 which declares the position of Secretaries of City Mayors as belonging to the non-competitive servPetitioners further aver that termination of the services of private respondent Talens is justified by the fact that the disputed positioAssistant Secretary to the Mayor is inherently and primarily highly confidential in nature.

Section 5 of Republic Act No. 2260, as amended by Republic Act No. 6040 provides that "The non-competitive service shall be composepositions expressly declared by law to be in the non-competitive service and those which are policy determining, primarily confidentiahighly technical in nature" and continues with an enumeration of specific officers and employees embraced within the scope of ncompetitive service. Among those included in the enumeration are heads of departments created in charters of cities and secretarieprovincial governors, city mayors and municipal mayors.

Although the position of assistant secretary to the city mayor is not among those expressly declared in Section 5 of Republic Act No. 22as amended, to be within the non-competitive service, Petitioners, however, argue that an assistant secretary is also a secretary, and t

comprised within the general term "secretaries" as provided for in Section 5(f).

We are not persuaded and find unacceptable such submission of the herein petitioners. As may be noted, the general purpose of the Service Law (Republic Act No. 2260) is "to insure and promote the constitutional mandate regarding appointments only according to mand fitness, and to provide within the public service a progressive system of personal administration to insure the maintenance ofhonest and efficient progressive and courteous civil service in the Philippines." (Section 2, R.A. 2260).

As a general rule, position in all branches, subdivisions and instrumentalities of the government, including those in government ownedcontrolled corporations, belong to the competitive service. The only exceptions are those expressly declared by law to be in the ncompetitive service and those which are policy-determining, primarily confidential or highly technical in nature. (Section 3, R.A. 2260amended by R.A. No. 6040).cralawnad



Under the rules of statutory construction, exceptions, as a general rule, should be strictly, but reasonably construed; they extend only soas their language fairly warrants, and all doubts should be resolved in favor of the general provisions rather than the exception. Whergeneral rule is established by statute with exceptions, the court will not curtail the former nor add to the latter by implication (Francisco, Statutory Construction, p. 304, citing 69 C.J., Section 643, pp. 1092-1093, Emphasis supplied).

Where a statute enumerates the subjects or things on which it is to operate, it is to be construed as excluding from its effects all thoseexpressly mentioned (Martin, Statutory Construction, 1979 ed., p. 71 citing Dave’s Place v. Liquor Control Comm., 269 N.W., p. 504).

The exceptions provided for in Section 5 of Republic Act No. 2260, as amended should be, therefore, strictly construed. It follows then ton this general governing principle, the position of assistant secretary to the City Mayor of Caloocan City should be considered as belon

to the non-competitive service.

The parties are agreed that the nature of the functions attaching to office or position ultimately determines whether such position is podetermining, primarily confidential or highly technical. It is the nature of the position which finally determines a position to be primaconfidential (Leon A. Pinero, Et. Al. v. Rufino Hechanova, Et Al., 18 SCRA 421). Stated differently, it is not the powers and duties exercand discharged by the Assistant Secretary to the Mayor as may be delegated and assigned by the Mayor that makes the positionAssistant Secretary primarily confidential. While duties possibly involving confidential matters are sometimes handled by the AssisSecretary to the Mayor, this does not necessarily transform the nature of the position itself as one that is primarily and highly confidenti

t should be stressed that the position of Secretary to the Mayor and that of Assistant Secretary to the Mayor are two separate and distpositions. While both individuals may be called "secretary," nevertheless, one is certainly of a higher category and rank than the other wthe added distinction that a Secretary must enjoy the confidence of the Mayor. However, the position of Assistant Secretary being oower rank, need not carry the requisites attaching to the primarily confidential position of the actual Secretary to the Mayor.

Moreover, if it was the intention of Congress to include the Assistant Secretaries within the purview of Section 5(f) of R.A. No. 2260amended, so that Assistant Secretaries are also embraced in the non-competitive service, the law could have been easily wor"secretaries and their assistance."cralaw virtua1aw library

Petitioners also contend that an assistant secretary is also a secretary and thus included in the general term "secretaries" as provided foSection 5(f) in the above-quoted provision. From this premise, the conclusion drawn by petitioners is that the position of AssistSecretary to the Mayor should be considered as in the non-competitive service and that the tenure of assistant secretary lasts only as las the Mayor’s confidence in him remains. Petitioners’ submission is that the assistant secretary is no less a secretary to the mayor.

We are not disposed to agree with petitioners. What petitioners fail to consider is that an "assistant secretary," although describedsecretary, technically differs in function from the "Secretaries." An "assistant" merely helps, aids or serves in a subordinate capacity to

person who is actually clothed with all the duties and responsibilities of "secretary." Needless to say, the functions strictly attributable t"secretary" and which would repose on such person the trust and confidence of the employer, is not automatically vested or transferrean "assistant secretary," because the latter simply assists or aids the former in the accomplishment of his duties.

The rulings of this Court in De Los Santos v. Mallare, 87 Phil. 289 and Besa v. PNB, 33 SCRA 330 which have been invoked by the petitiondo not provide support to petitioners’ case. The aforestated cases have no parallel to the case at bar. The case of De los Santos v. Mall

relates to a quo warranto proceeding, questioning the legality of the appointment of the respondent therein to the office of the Engineer for the City of Baguio which petitioner De los Santos was then occupying. Said position was in fact declared to be neither primconfidential, policy-determining, nor highly technical and petitioner therein was adjudged to be entitled to remain in office and respondent’s appointment was declared ineffective. Neither would the other case of Besa v. PNB find any application to the in stant because the position therein involved was that of Chief Legal Counsel which, by its very nature, was rightfully ruled to be both impreswith a highly technical aspect and confidential character. It can be readily noted that the facts and circumstances in the present case even the principal issue involved in the case at bar are distinctly different from the cases cited by petitioners.

More pertinent and relevant are the pronouncements in Ingles v. Mutuc, 26 SCRA 177, wherein We stated:cralawnad

". . . On the contrary, the compensation attached and the designation given thereto suggest the purely, or, at least, mainly clerical naturtheir work. The fact that they, at times, handle ‘confidential matters’ does not suffice to characterize their ‘positions’ as primconfidential. Indeed, it is admitted that plaintiffs, likewise, handle ‘other routine matters,’ and it has not even been shown that their w

s, at least, principally confidential."cralaw virtua1aw library

WHEREFORE, the decision appealed from is hereby AFFIRMED but considering the notice of death given to this Court of the death ofherein private respondent Feliciano C. Talens, on August 28, 1982 (Rollo, p. 184), the dispositive portion of the subject decision of the tcourt in Civil Case No. C-2308, is hereby MODIFIED, to now read as follows:jgc:chanrobles.com.ph



"IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, the Court hereby renders judgment in favor of Petitioner Feliciano C. Talens, against the Respondents, and

1.) Declaring Administrative Order No. 3, dated January 10, 1972, of Respondent City Mayor Marcial F. Samson, null and void;

2.) Ordering Respondents, except private respondent Hermogenes Liwag, to pay Petitioner Feliciano C. Talens, all the salaries emoluments appurtenant to and due to the latter as Assistant Secretary to the Mayor of Caloocan City, but for a limited period of thyears. Without costs."cralaw virtua1aw library

SO ORDERED.

Feria, Fernan, Gutierrez, Jr. and Paras, JJ., concur.[G.R. No. L-17287. June 30, 1965.]

JAIME HERNANDEZ, Secretary of Finance, ELEUTERIO CAPAPAS, Commissioner of Customs, JAMES H. KEEFE, Acting Director of Security, JUAN C. PAJO, Executive Secretary, Petitioners, v. EPIFANIO T. VILLEGAS and the HON. COURT OF APPEALS, Respondents.

Solicitor General, for Petitioners.

Antonio J. Villegas for Respondents.

SYLLABUS

1. CIVIL SERVICE; OFFICERS OCCUPYING PRIMARILY CONFIDENTIAL POSITIONS MAY NOT BE REMOVED OR SUSPENDED WITHOUT CAUSEEven officers and employees of the civil service occupying primarily confidential positions are subject to the constitutional safeguagainst removal or suspension except for cause.

2. ID.; ID.; STATEMENT IN DE LOS SANTOS v. MALLARE CASE ON TERMINATION AT WILL DEEMED MERE OBITER. — The statement incase of De los Santos v. Mallare, 87 Phil. 289, to the effect that appointments to positions which are primarily confidential, podetermining and highly technical are terminable at the will of the appointing power, must be deemed a mere obiter.

3. ID.; ID.; How APPOINTMENTS TO PRIMARILY CONFIDENTIAL POSITIONS TERMINATED. — Officials and employees holding primconfidential positions continue only for so long as confidence in them endures. The termination of their official relation can be justified

the ground of loss of confidence because in that case their cessation from office involves no removal but merely the expiration of the teof office.

D E C I S I O N

REGALA, J.:

Epifanio Villegas, a lawyer and civil service eligible, was appointed Director for Security of the Bureau of Customs, with compensatioP6,000, effective November 1, 1955. In 1956, he was sent to the United States to study enforcement techniques and customs practunder the technical assistance program of the National Economic Council and the International Cooperation Administration.

Villegas returned to the Philippines in June, 1957. Shortly thereafter, he was temporarily detailed to the Arrastre Service vice EleaManikan and, in his stead, James Keefe was designated Acting Director for Security. While he was acting Arrastre Superintendent, howeVillegas continued receiving his salary as Director for Security and, when the salary was increased from P6,000 to P7,017.60, he received the corresponding salary adjustment.

On January 9, 1958, Secretary of Finance Jaime Hernandez proposed to the Office of the President the permanent appointment of Villeas Arrastre Superintendent, stating in his letter that "this (the proposed appointment) involves a change of designation and status fDirector for Security which is confidential in nature to Arrastre Superintendent, a classified position." A few days later, the appointmenJames Keefe to the position of Director for Security was likewise proposed.

On January 14, 1958, Executive Secretary Juan C. Pajo advised Secretary Hernandez that the President had approved the propo

appointments of Villegas and Keefe. Accordingly, Villegas and Keefe’s appointments, effective January 1, 1958, were prepared and l



signed by Secretary Hernandez. As the Court of Appeals observed in its decision, "In one of the appointments, defendant Keefe wpromoted to the position of Director for Security . . . and in the other plaintiff was demoted to the rank of arrastre superintende(Emphasis supplied)

t appears that Villegas did not know of his appointment and that of Keefe until February 28, 1958. On this day, he learned that Keefe wbeing paid the salary for Director for Security and, on further inquiry, found that he had been appointed Arrastre Superintendent. On M3, 1958, therefore, he served notice on Customs Commissioner Eleuterio Capapas that he was resuming the duties and functions ofoffice as Director for Security. He also wrote the Auditor General, Secretary Hernandez and Commissioner Capapas, the BudCommissioner and the Civil Service Commissioner, asking them to disapprove the promotional appointment of Keefe to the post of Direfor Security.

When all else failed, Villegas filed this action for quo warranto in the Court of First Instance of Manila. The court gave judgment for Villewith right to collect back pay as Director for Security from January 1, 1958. Its decision was subsequently affirmed by the Court of Appea

The Secretary of Finance, the Customs Commissioner, the incumbent Director for Customs Security and the Executive Secretary happealed to this Court raising the following issues: (1) Whether the office of Director for Security in the Bureau of Customs is a primaconfidential position, and (2) whether the Director for Security can be transferred to another position without cause. Their theory is since the work of the Director — which has been delegated to him by the Customs Commissioner — is to coordinate the functionsecurity, patrol and investigation divisions in the Customs Bureau, all of which positions have been declared by Executive Order toprimarily confidential, then the Office of Director for Security must itself be considered primarily confidential. They then justify the tranof Villegas to the Arrastre Service on the basis of the statement in De los Santos v. Mallare, 87 Phil., 287, to the effect that positions whare primarily confidential, policy determining and highly technical "are excluded from the merit system and dismissal at pleasure of offiand employees appointed therein is allowed by the Constitution."cralaw virtua1aw library

On the other hand, in sustaining Villegas’ right to the office of Director for Security, the Court of Appeals relied mainly on Section 671 ofRevised Administrative Code —

"The following officers and employees constitute the unclassified services:chanrob1es virtual 1aw library

x x x

"(1) Positions which may be declared by the President of the Philippines, upon recommendation of the Commissioner of Civil Servas policy-determining, primarily, confidential or highly technical."cralaw virtua1aw library

n reaching the following conclusion:jgc:chanrobles.com.ph

". . . the only authority who, by constitutional and legal provisions, is competent to classify a position into primarily confidential is President. The heads of departments and the Commissioner of Civil Service can only recommend or make comments. The fact thaproposal to appoint to a certain position, that of arrastre superintendent, has been favorably recommended and endorsed by department heads and the chiefs of offices and approved by the Office of the President does not go to show that an entirely differposition, that of Director for Security has been classified into category of primarily confidential.

"The evidence of the defendants-appellants yield no indication that the position of Director for Security has even been classified primarily confidential according to the procedure laid down by the law and the Constitution. It results that the removal of the plaintiff fthe said position without justifiable cause and his transfer to the position of arrastre superintendent are illegal . . . Consequentlyappointment of defendant Keefe to the position of Director for Security, the effect of which is to exclude and remove the plaintiff from said position, is also illegal."cralaw virtua1aw library

For our purposes, we do not need to consider the position involved in this case is primarily confidential, because, even assumingposition to be, it is nevertheless subject to the Constitutional provision that "No officer or employee in the Civil Service shall be removesuspended except for cause." (Phil. Const., Art. XII, sec. 4) Villegas’ removal is, therefore, concededly without cause. Thus, only recently,Court reiterated in Corpus v. Cuaderno, G. R. No. L-23721, March 31, 1960, the view that —

[T]he Constitutional provisions merely constitute the policy determining, primarily confidential, and highly technical positions as exceptto the rule requiring appointments in the Civil Service to be made on the basis of merit and fitness as determined from competexaminations (sec. 1, supra) (Jover v. Borra, 93 Phil., 506; 49 Off. Gaz., [No. 7] 2755), but that the Constitution does not exempt spositions from the operation of the principle emphatically and categorically enunciated in section 4 of Article XII, that —

"No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law."cralaw virtua1aw library



and which recognizes no exception.

This view finds confirmation in sections 3 and 5 of the Civil Service Act of 1959 (Rep. Act No. 2260).

The statement in De los Santos v. Mallare, supra, to the effect that appointment to any of the three classes of positions is terminable atwill of the appointing power, must be deemed a mere obiter. It has been correctly criticized as misleading. For if these three spepositions do not really belong to the Civil Service, the Constitution would not have specifically named them as an exception of the genrule that all appointments must be made on the basis of merit and fitness to be determined by competitive examinations. (Sinco, PhilipPolitical Law 411 [11th ed. 1962]) Indeed, in the Corpus case, this statement was held as not controlling, the ruling in the De los Sancase, where the statement appears, being that a city engineer who belongs to the unclassified service is protected by the security-of-ten

provision of the Constitution.

t is to be understood of course that officials and employees holding primarily confidential positions continue only for so long as confiden them endures. The termination of their official relation can be justified on the ground of loss of confidence because in that case t

cessation from office involves no removal but merely the expiration of the term of office — two different causes for the terminatioofficial relations recognized in the Law of Public Officers. (See, e.g., Corpus v. Cuaderno, supra; Alva v. Evangelista, 53 Off. Gaz., 14Fernandez v. Ledesma, G. R. No. L-18878, March 30, 1963. Contra, Hojilla v. Mariño, G. R. No. L-20574, Feb. 26, 1965) But the point is tas long as confidence in them endures — and it has not been shown that it has been lost in this case — the incumbent is entitlecontinue in office.

We therefore hold that Villegas’ removal from the office of Director for Security is without cause and is therefore illegal.

WHEREFORE, the decision appealed from is affirmed, without pronouncement as to costs.

Concepcion, Reyes, J.B.L., Paredes, Dizon, Makalintal, Bengzon, J.P., and Zaldivar, JJ., concur.

Bengzon, C.J., concurs in the result.

Bautista Angelo, J., took no part.

Barrera, J., is on leave.G.R. No. 93023 March 13, 1991TOMAS D. ACHACOSO, petitiovs.CATALINO MACARAIG and RUBEN D. TORRES, in their capacities as Executive Secretary and Secretary of the Department of Labor

Employment (DOLE), respectively; and JOSE N. SARMIENTO, respondents.Padilla, Jimenez, Kintanar and Asuncion Law Office for petitioner.

CRUZ, J:p The petitioner invokes security of tenure against his claimed removal without legal cause. The respondents assert he is not entitled toguaranty because he is not a career official. These are the legal issues. The facts are as follows:Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment Administration on October 16, 1987, assumed office on October 27, 1987. On January 2, 1990, in compliance with a request addressed by the President of the Philippines to Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other government officials, he filed a courtesy resignatThis was accepted by the President on April 3, 1990, "with deep regrets." On April 10, 1990, the Secretary of Labor requested him to tover his office to the Deputy Administrator as officer in-charge. In a letter dated April 19, 1990, he protested his replacement and declahe was not surrendering his office because his resignation was not voluntary but filed only in obedience to the President's directive. Onsame date, respondent Jose N. Sarmiento was appointed Administrator of the POEA, vice the petitioner. Achacoso was informed the

the following day and was again asked to vacate his office. He filed a motion for reconsideration on April 23, 1990, but this was deniedApril 30, 1990. He then came to this Court for relief.n this petition for prohibition and mandamus, this Court is asked to annul the appointment of Sarmiento and to prohibit the responde

from preventing the petitioner from discharging his duties as Administrator of the POEA.Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys security of tenure, which is one of characteristics of the Career Service as distinguished from the Non-Career Service.

1 Claiming to have the rank of undersecretary, he say

comes under Article IV, Section 5 of P.D. 807, otherwise known as the Civil Service Decree, which includes in the Career Service:3. Positions in the Career Executive Service; namely, Undersecretary, Assistant Secretary, Bureau Director, AssisBureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officersequivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the Presiden

His argument is that in view of the security of tenure enjoyed by the above-named officials, it was "beyond the prerogatives of President" to require them to submit courtesy resignations. Such courtesy resignations, even if filed, should be disregarded for having b

submitted "under duress," as otherwise the President would have the power to remove career officials at pleasure, even for caprici



reasons. In support of this contention, he invokesOrtiz vs. Commission on Elections,2 where we observed that "to constitute a complete

operative act of resignation, the officer or employee must show a clear intention to relinquish" and that "a courtesy resignation canproperly be interpreted as a resignation in the legal sense for it is not necessarily a reflection of a public official's intention to surrenderposition." He concludes that as his removal was illegal, there was no vacancy in the disputed office to which respondent Sarmiento cohave been validly appointed.n his Comment, the Solicitor General concedes that the office of POEA Administrator is a career executive service position but submits

the petitioner himself is not a career executive service official entitled to security of tenure. He offers the following certification from Civil Service Commission to show that the petitioner did not possess the necessary qualifications when he was appointed Administratothe POEA in 1987:

C E R T I F I C A T I O N

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

(Sgd.) ELMOR D. JURIDExecutive Director

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

c. Appointment . Appointment to appropriate classes in the Career Service shall be made by the President from a lis

career executive eligibles recommended by the Board . Such appointments shall be made on the basis of rank; provithat appointments to the higher ranks which qualify the incumbents to assignments as undersecretary and heads ofbureaus and offices and equivalent positions shall be with the confirmation of the Commission on Appointments.President may, however, in exceptional cases, appoint any person who is not a Career Executive Service eligible, prov

that such appointee shall subsequently take the required Career Executive Service examination and that he shall no

promoted to a higher class until he qualifies in such examination. (Emphasis supplied.)The respondents contend that as the petitioner was not a career executive service eligible at the time of his appointment, he came unthe exception to the above rule and so was subject to the provision that he "shall subsequently take the required Career Executive Serexamination and that he shall not be promoted to a higher rank until he qualifies in such examination." Not having taken that examinathe could not claim that his appointment was permanent and guaranteed him security of tenure in his po sition.t is settled that a permanent appointment can be issued only "to a person who meets all the requirements for the position to which h

being appointed, including the appropriate eligibility prescribed." Achacoso did not. At best, therefore, his appointment could be regaronly as temporary. And being so, it could be withdrawn at will by the appointing authority and "at a moment's notice," conformablyestablished jurisprudence.The Court, having considered these submissions and the additional arguments of the parties in the petitioner's Reply and the SoliciGeneral's Rejoinder, must find for the respondents.

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

3

appointment extended to him cannot be regarded as permanent even if it may be so designated.The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by authorizing a persodischarge the same pending the selection of a permanent or another appointee.

4 The person named in an acting capacity accepts

position under the condition that he shall surrender the office once he is called upon to do so by the appointing authority.n these circumstances, the acting appointee is separated by a method of terminating official relations known in the law of public officer

expiration of the term. His term is understood at the outset as without any fixity and enduring at the pleasure of the appointing authoWhen required to relinquish his office, he cannot complain that he is being removed in violation of his security of tenure because remomports the separation of the incumbent beforethe expiration of his term.

5 This is allowed by the Constitution only when it is for caus

provided by law. The acting appointee is separated precisely because his term has expired. Expiration of the term is not covered by

constitutional provision on security of tenure.There is a long line of cases affirming the rule that:

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

6

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

7 is not applicable because the facts of that case are different. The petitioner in Lu

was qualified and was extended a permanent appointment that could not be withdrawn on the ground that it was merely temporary. Incase at bar, the petitioner was not eligible and therefore could be appointed at best only in a temporary capacity. The other cases



cites, viz. Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate Court ,8Palma-Fernandez vs. De la Paz,

9 and Dario vs. Mison,

10

also not pertinent because they also involved permanent appointees who could not be removed because of their security of tenure.t should be obvious from all the above observations that the petitioner could have been validly replaced even if he had not filed

courtesy resignation. We therefore do not have to rule on its legality. Suffice it to say that it could have been a graceful way of withdrawhim from his office with all the formal amenities and no asperity or discord if only he had not chosen to contest it. But it was his right toso, of course, although his challenge has not succeeded.WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.Fernan, C . J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Dav

Jr., JJ., concur. [G.R. No. L-12536. September 24, 1958.]

CONCEPCION G. BRIONES accompanied by her husband DEMOCRITO R. BRIONES, and FAUSTINO O. ROSAGARAN, Petitioners-AppelleeSERGIO OSMEÑA, JR., Mayor of Cebu City, ETC., ET AL., Respondents-Appellants.

City Fiscal and Quirico del Mar for Appellants.

Albino, Albino & Pacquiao for Appellees.

SYLLABUS

1. PUBLIC OFFICERS; ABOLITION OF OFFICE; RIGHT CANNOT BE EXERCISED IN VIOLATION OF CIVIL SERVICE LAW. — While abolition of

office does not imply removal of the incumbent, the rule is true only where the abolition is made in good faith; the right to abolish can be used to cover the discharge of employees in violation of the civil service law nor can it be exercised for personal or political reaso(Gacho, Et. Al. v. Osmeña, Et Al., 103 Phil., 837.)

D E C I S I O N

REYES, J.B.L., J.:

This is an action for mandamus with damages, to declare the abolition of petitioners’ positions void and to order the respondent City Ma

to reinstate them to their former positions.

Petitioner Concepcion G. Briones is a first grade civil service eligible. On March 4, 1937, she was appointed Clerk-Stenographer in the Ofof the City Treasurer of Cebu and on August 5, 1937, she was transferred to the Office of the City Mayor, in the same capacity as CleStenographer, but with permanent status, since then she remained in service continuously, receiving repeated promotions and increasesalary.

Petitioner Faustino O. Rosagaran, on the other hand, is a second grade civil service eligible. He was employed in the Office of the City Maof Cebu since July, 1940, and promoted to Administrative Officer. In 1955, he was publicly declared and adjudged "Model Employe(Annex "G", records, p. 22).

On January 5, 1956, the Municipal Board of the City of Cebu, acting upon the request of the respondent City Mayor embodied in his letdated January 4, 1956, passed Resolution No. 21, series of 1956, creating 35 positions in the City Mayor’s office, and approp riating ther

the necessary amount for salaries for six months, the amounts of P28,000 for office equipment, P2,000 for office supplies and an additioamount of P10,000 for the City Mayor’s discretionary fund.

The new positions were:chanrob1es virtual 1aw library

Private Secretary at P255 a month P1,530.00

Assistant Private Secretary at P215 a month P1,290.00

Two (2) Confidential Assistants at P200 each per month P2,400.00

Two (2) Liaison Officers at P250 each per month P3,000.00



One Driver at P175 per month P1,050.00

One Driver at P120 per month P 720.00

One Janitor at P120 per month P 720.00

Two (2) Laborers at P120 each per month P1,440.00

Two (2) Stenographers at P150 each per month P1,800.00

One Receptionist at P130 per month P 780.00

Public Relations Officer at P300 per month P1,800.00

Two Assistant Public Relations Officers at P150 each per

month P1,800.00

One Stenographer at P150 per month P 900.00

One Laborer at P120 per month P 720.00


Chief, Complaints and Investigation Division at P300 per

month P1,800.00

Two (2) Legal Assistants at P200 each per month P2,400.00

One Laborer at P120 per month P 720.00


Three (3) Informers at P150 each per month P2,700.00

Seven (7) Informers at P120 each per month P5,040.00

—————

Total P34,050.00

—————

On February 14, 1956, the Municipal Board in its Resolution No. 187, series of 1956, approved Ordinance No. 192, abolishing 15 positionthe City Mayor’s office and 17 positions in the Office of the Municipal Board, or a total of 32 positions in both of fices. Among the positabolished in the Office of the City Mayor were those occupied by petitioners. (Exh. "H", pp. 23-24). The Ordinance was approved by the Mayor on February 20, 1956.

Pursuant to said Ordinance No. 192, the City Mayor, on February 23, 1956, wrote separate letters to petitioners notifying them of abolition of their positions and advising them of the termination of their services "effective at the close of business hours on March 1956." (Exhs. I and I-1, Records, pp. 25-26). In reply thereto, petitioners Briones and Rosagaran, respectively, wrote in March 1956, sepaetters to the respondent City Mayor (1) acknowledging receipt his letters of separation, (2) protesting the abolition of their positions,

(3) informing him that they will not relinquish their positions "until otherwise determined by higher competent authorities or courts." (EJ and J-1, Records, pp. 27-28).

As the respondent City Mayor persisted in terminating their services, added to the fact that the respondents City Treasurer and City Audrefused to pay their salaries after March 16, 1956, petitioners filed the instant petition for reinstatement, back salaries, moral damagesattorney’s fees.



The Court of First Instance of Cebú decided in favor of the petitioners and declared the abolition of their offices null and void for lackapproval of the Department Head, as required by the Circular of April 3, 1954 and by Executive Order No. 506, series of 1934; consequet rendered judgment against defendants ordering them to reinstate the two petitioners to their former positions and to pay their b

salaries as well as the costs of the suit. From this judgment the respondents appealed.

Appellants contend that the provisions of Executive Order No. 506, Series of 1934, as reiterated in the Provincial Circular of April 3, 19requiring previous approval of the Department Head concerned before abolition of positions by local legislative bodies can take effect, ionger operative since the Commonwealth, in view of the fact that the Constitution vests in the President of the Philippines (Art. VII, sec

10 (1) only general supervision, and not control, over local governments. This contention is sustained by the recent doctrines of this Coparticularly Rodriguez v. Montinola (94 Phil., 964; 50 Off. Gaz., [10] 4820) and Dominguez v. Pascual (101 Phil., 31).

The case of Pulutan v. Dizon, 99 Phil., 168; 52 Off. Gaz., 3047, invoked by the trial court, is of no application since that case referredpolice officers, whose removal or suspension is governed by entirely different laws (Executive Order No. 175, Series 1938, and Republic 557). Moreover, in the Pulutan case, the validity and constitutionality of the Provincial Circular and of Executive Order No. 506, supra, not in issue.

Nevertheless, in our opinion, the decision appealed from should be sustained, but on different grounds. Our review of the evidencerecord convinced us that the reasons given for the abolition of the positions of the appellees (alleged to be economy and efficiency)untrue, and constitute a mere subterfuge for the removal without cause of the said appellees, in violation of the security of Civil Sertenures as provided by the Constitution.

Considering that the appellees have served in the office of the Mayor of Cebu, since Commonwealth days, before the war; that tefficiency and merit has been attested by repeated and constant promotions and increases in salary; that petitioner Rosagaran was e

proclaimed "Model Employee" as recently as 1955; and that just a short time before the abolition of their positions, the respondents created for the same office of the City Mayor no less than 35 new positions calling for an outlay of P68,100 per annum, almost P6,00month, the excuse of promoting efficiency and economy is most transparent and unimpressive. A decent respect for the Civil Serprovisions of our Constitution dictates that civil service eligibles, like petitioners herein who have rendered long and honorable servshould not be sacrificed in favor of non-eligibles given positions of recent creation, nor should they be left at the mercy of political chann Pulutan v. Dizon (supra) we said:jgc:chanrobles.com.ph

"It is evident that the mayor could not legally remove the petitioner without cause, for being a member of the Civil Service, his tenureoffice is protected by Section 4, Article XII of the Constitution, which says:chanrob1es virtual 1aw library

‘No officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law.’

The Committee on Civil Service of the Constitutional Convention, in recommending said provision said:chanrob1es virtual 1aw l ibrary

‘. . . The merit system will be ineffective if no safeguards are placed around the separation and removal of the public employees. Committees’ report requires that removal shall be made only for cause’ and in the manner provided by law. This means that the re shobe bona fide reasons and action may be taken only after the employee shall have been given a fair hearing. This affords to public employreasonable security of tenure." (Aruego, The Framing of the Philippine Constitution, 1949 Ed., p. 567)

This Court has always upheld these salutary principles. In our recent decision in Gacho, Et. Al. v. Osmeña, etc. Et. Al., 94 Phil., 208, we ruthat while abolition of the office does not imply removal of the incumbent, the rule is true only where the abolition is made in good fathat the right to abolish can not be used to discharge employees in violation of the civil service law nor can it be exercised for personapolitical reasons. That ruling is conclusive on the case now before us.

Appellants (respondents below) aver that the petition for mandamus should have been dismissed because the appellees have

exhausted the available administrative remedies. The Stipulation of Facts, however, expressly admitted paragraph 18 of the petitalleging "that all administrative remedies have been exhausted by the petitioners for the speedy and ample protection of their righ(Records, p. 53). The assignment of error is not only groundless but improper.

The decision appealed from is affirmed, with costs against respondents in both instances. So ordered.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Labrador, Concepcion, Endencia and Felix, JJ., concur.G.R. No. 87211 March 5, 1991

JOVENCIO L. MAYOR petitioner,vs.HON. CATALINO MACARAIG, HON. GUILLERMO CARAGUE, HON. RIZALINA CAJUCOM, HON. FRANKLIN DRILON, respondents. LOURDE

SALES and RICARDO OLAIREZ, petitioners-intervenors.



G.R. No. 90044 March 5, 1991

PASCUAL V. REYES, petitioner,vs.HON. FRANKLIN DRILON, respondent.

G.R. No. 91547 March 5, 1991

CEFERINO E. DULAY, ROSARIO G. ENCARNACION and DANIEL LUCAS, JR., petitioners,

vs.HON. CATALINO MACARAIG, JR., as Executive Secretary, HON. GUILLERMO N. CARAGUE, as Secretary of Budget and Management, HDIONISIO DE LA SERNA, as Acting Secretary of Labor & Employment, BARTOLOME CARALE, VICENTE S.E. VELOSO III, ROMEO B. TUOEDNA BONTO PEREZ, DOMINGO H. ZAPANTA, RUSTICO L. DIOKNO, LOURDES C. JAVIER, IRINEO B. BARNALDO, ROGELIO I. RAYALA, ERNEG. LADRINO III, IRENEA E. CENIZA, BERNABE S. BATUHAN, MUSIB M. BUAT, L.B. GONZAGA, JR. and OSCAR ABELLA, respondents.

G.R. No. 91730 March 5, 1991

CONRADO B. MAGLAYA, petitioner,vs.HON. CATALINO MACARAEG, HON. GUILLERMO CARAGUE, HON. RIZALINA CAJOCUM, and the HONORABLE SECRETARY OF LABrespondents.

G.R. No. 94518 March 5, 1991

ROLANDO D. GAMBITO, petitioner,vs.THE SECRETARY OF LABOR AND EMPLOYMENT and THE EXECUTIVE SECRETARY, respondents.

Ma. Luisa Y. Cortes for petitioner-intervenor Sales in G.R. No. 87211.

Jose C. Espinas for petitioners in G.R. Nos. 90044 & 91730.

Magtanggol C. Gunigundo for petitioners in G.R. No. 91547.

NARVASA, J.:p

Five (5) special civil actions are hereby jointly decided because they involve one common, fundamental issue, the constitutionalityRepublic Act No. 6715, effective March 21, 1989, in so far as it declares vacant "all positions of the Commissioners, Executive Labor Arbiand Labor Arbiters of the National Labor Relations Commission," and operates to remove the incumbents upon the appointment qualification of their successors. The law is entitled, "AN ACT TO EXTEND PROTECTION TO LABOR, STRENGTHEN THE CONSTITUTIONRIGHTS OF WORKERS TO SELF-ORGANIZATION, COLLECTIVE BARGAINING AND PEACEFUL CONCERTED ACTIVITIES, FOSTER INDUSTRPEACE AND HARMONY, PROMOTE THE PREFERENTIAL USE OF VOLUNTARY MODES OF SETTLING LABOR DISPUTES AND RE-ORGANIZE NATIONAL LABOR RELATIONS COMMISSION, AMENDING PRESIDENTIAL DECREE NO. 441, AS AMENDED, OTHERWISE KNOWN AS TLABOR CODE OF THE PHILIPPINES, APPROPRIATING FUNDS THEREFOR AND FOR OTHER PURPOSES." 1 The provision directly dealing wthe reorganization of the National Labor Relations Commission is Section 35. It reads as follows: 2

Sec. 35. Equity of the Incumbent. — Incumbent career officials and rank-and-file employees of the National labor Relations Commisnot otherwise affected by the Act shall continue to hold office without need of reappointment. However, consistent with the neeprofessionalize the higher levels of officialdom invested with adjudicatory powers and functions, and to upgrade their qualifications, ranand salaries or emoluments, all positions of the Commissioners, Executive Labor Arbiters and Labor Arbiters of the present National LaRelations Commission are hereby declared vacant. However, subject officials shall continue to temporarily discharge their duties functions until their successors shall have been duly appointed and qualified.

The first of these five consolidated cases was filed by Labor Arbiter Jovencio Ll. Mayor on March 8, 1989. In the year that followed, eother officers of the Commission, as initiators of their own separate actions or as intervenors, joined Mayor in the attempt to invalidatereorganization and to be reinstated to their positions in the Government service.

G.R. No. 87211: Jovencio Mayor; and Intervenors Lourdes A. Sales and Ricardo Olairez



Jovencio Ll. Mayor, a member of the Philippine Bar for fifteen (15) years, was appointed Labor Arbiter in 1986 after he had, accordinghim, met the prescribed qualifications and passed "a rigid screening process." Fearing that he would be removed from office on accounthe expected reorganization, he filed in this Court the action now docketed as G.R. No. 87211. His fears proved groundless, howeverwas in fact reappointed a Labor Arbiter on March 8, 1990. Hence, as he himself says, the case became moot as to him.

Like Mayor, both intervenors Lourdes A. Sales and Ricardo N. Olairez were appointed Labor Arbiters in 1986, but unlike Mayor, wereamong the one hundred fifty-one (151) Labor Arbiters reappointed by the President on March 8, 1990.

G.R. No. 90044; Pascual Y Reyes; and Intervenor Eugenio L Sagmit, Jr.

At the time of the effectivity of R.A. No. 6715, Pascual Y. Reyes was holding the office of Executive Director of the National Labor RelatiCommission in virtue of an appointment extended to him on May 30, 1975. As specified by Administrative Order No. 10 of the SecretarLabor, dated July 14, 1975, the functions of his office were "to take charge of all administrative matters of the Commission and to hdirect supervision overall units and personnel assigned to perform administrative tasks;" and Article 213 of the Labor Code, as amenddeclared that the "Executive Director, assisted by a Deputy Executive Director, shall exercise the administrative functions of Commission." Reyes states that he has been "a public servant for 42 years," and "is about to retire at sixty-five (65)," in 1991.

The petitioner-in-intervention, Eugenio I. Sagmit, Jr., was Reyes' Deputy Executive Director, appointed as such on October 27, 1987 atwenty-five (25) years of government service.

Both Reyes and Sagmit were informed that they had been separated from employment upon the effectivity of R.A. No. 6715, pursuant Memorandum-Order issued by then Secretary of Labor Franklin Drilon on August 17, 1989 to the effect that the offices of Execu

Director and Deputy Executive Director had been abolished by Section 35, in relation to Section 5 of said Act, and "their functtransferred to the Chairman, aided by the Executive Clerk.

Reyes moved for reconsideration on August 29, 1989, but when no action was allegedly taken thereon, he instituted the action at bar, No. 90044. Sagmit was afterwards granted leave to intervene in the action.

G.R. No. 91547: Ceferino Dulay, Rosario G. Encarnacion, and Daniel M. Lucas

Petitioners Rosario G. Encarnacion and Daniel M. Lucas, Jr. were appointed National Labor Relations Commissioners on October 20, 19after the Commission was reorganized pursuant to Executive Order No. 47 of President Aquino. Later, or more precisely on November1986, Lucas was designated Presiding Commissioner of the Commission's Second Division; and Commissioner Ceferino E. Dulay appointed Presiding Commissioner of the Third Division.

Executive Order No. 252, issued by the President on July 25, 1987, amended Article 215 of the Labor Code by providing that Commissioners appointed under Executive Order No. 47 dated September 10, 1986 shall hold office for a term of six (6) years . . . (buthose thus appointed) three shall hold office for four (4) years, and three for two (2) years . . . without prejudice to reappointment." UnExecutive Order No. 252, the terms of Encarnacion and Lucas would expire on October 23, 1992, and that of Dulay, on December 18, 199

On November 18, 1989, R.A. No. 6715 being then already in effect, the President extended to Encarnacion, Lucas and Dulay nappointments as Commissioners of the NLRC despite the fact that, according to them, they had not been served with notice of termination of their services as incumbent commissioners, and no vacancy existed in their positions. Their new appointments wsubmitted to Congress, but since Congress adjourned on December 22, 1989 without approving their appointments, said appointmebecame functus officio.

No other appointments were thereafter extended to Encarnacion and Dulay. Lucas was however offered the position of Assistant Regio

Director by Secretary Drilon and then by Acting Secretary Dionisio de la Serna (by letter dated January 9, 1990 which referred toappointment as such Assistant Regional Director supposedly "issued by the President on November 8, 1989"). Lucas declined the ofbelieving it imported a demotion.

They all pray that their removal be pronounced unconstitutional and void and they be declared Commissioners lawfully in office,alternatively, that they be paid all salaries, benefits and emoluments accruing to them for the unexpired portions of their six-year termsallowed to enjoy retirement benefits under applicable laws (pursuant to R.A. 910 and the Resolution re Judge Mario Ortiz, G. R. No. 789June 28, 1988).

Of the incumbent Commissioners as of the effectivity of R.A. 6715, six (6) were reappointed, namely: (1) Hon. Edna Bonto PerezPresiding Commissioner, Second Division NCR]), (2) Domingo H. Zapanta (Associate Commissioner, Second Division), (3) Lourdes C. Ja(Presiding Commissioner, Third Division [Luzon except NCR]), (4) Ernesto G. Ladrido III (Presiding Commissioner, Fourth Division [Visaya

(5) Musib M. Buat (Presiding Commissioner, Fifth Division [Mindanao]), and (6) Oscar N. Abella (Associate Commissioner, Fifth Divisi



Other members appointed to the reorganized Commission were Vicente S.E. Veloso III, Romeo B. Putong, Rustico L. Diokno, IreneBernardo, Rogelio I. Rayala, Irenea E. Ceniza, Bernabe S. Batuhan, and Leon G. Gonzaga, Jr. Appointed Chairman was Hon. BartoloCarale, quondam Dean of the College of Law of the University of the Philippines.

G.R. No. 91730: Conrado Maglaya

Petitioner Conrado Maglaya alleges that he has been "a member of the Philippine Bar for thirty-six (36) years of which 31 years . . . (been) devoted to public service, the last 24 years in the field of labor relations law;" that he was appointed Labor Arbiter on May 30, 1and "was retained in such position despite the reorganization under the Freedom Constitution of 1986 . . . (and) later promoted to appointed by the President as Commissioner of the . . . (NLRC) First Division on October 23, 1986." He complains that he was effecti

removed from his position as a result of the designation of the full complement of Commissioners in and to all Five Divisions of the NLRAdministrative Order No. 161 dated November 18, 1989, issued by Labor Secretary Drilon.

G.R. No. 94518: Rolando D. Gambito

Rolando Gambito passed the bar examinations in 1971, joined the Government service in 1974, serving for sixteen years in the Departmof Health, and as Labor Arbiter in the Department of Labor and Employment from October, 1986. He was not included in the list of neappointed Labor Arbiters released on March 8, 1990; and his attempt to obtain a recosideration of his exclusion therefrom and bring abhis reinstatement as Labor Arbiter was unavailing.

The Basic Issue

A number of issues have been raised and ventilated by the petitioners in their separate pleadings. They may all be reduced to one ba

question, relating to the constitutionality of the provisions of Republic Act No. 6715 DECLARING VACANT "all positions of Commissioners, Executive Labor Arbiters and Labor Arbiters of the present National Labor Relations Commission," 3 according to whichpublic respondents —

1) considered as effectively separated from the service inter alia, all holders of said positions at the time of the effectivity of Republic Act No. 6715, including the positions of Executive Director and Deputy Executive Director of the Commission, and

2) consequently, thereafter caused the appointment of other persons to the new positions specified in said statute: of ChairmCommissioners, Executive Clerk, Deputy Executive Clerk, and Labor Arbiters of the reorganized National Labor Relations Commission. old positions were declared vacant because, as the statute states, of "the need to professionalize the higher levels of officialdom inveswith adjudicatory powers and functions, and to upgrade their qualifications, ranks, and salaries or emoluments."

As everyone knows, security of tenure is a protected right under the Constitution. The right is secured to all employees in privates as wen public employment. "No officer or employee in the civil service," the Constitution declares, "shall be removed or suspended exceptcause provided by law." 4 There can scarcely be any doubt that each of the petitioners — commissioner, administrative officer, or laarbiter — falls within the concept of an "officer or employee in the civil service" since the civil service "embraces all branches, subdivisionstrumentalities, and agencies of the Government, including government—owned or controlled corporations with original charters." 5

Commissioners thus had the right to remain of office until the expiration of the terms for which they had been appointed, unless sooremoved "for cause provided by law." So, too, the Executive Director and Deputy Executive Director, and the Labor Arbiters had the righretain their positions until the age of compulsory retirement, unless sooner removed "for cause provided by law." None of them coulddeemed to be serving at the pleasure of the President.

Now, a recognized cause for several or termination of employment of a Government officer or employee is the abolition by law of his ofas a result of reorganization carried out by reason of economy or to remove redundancy of functions, or clear and explicit constitutiomandate for such termination of employment. 6 Abolition of an office is obviously not the same as the declaration that that office is vac

While it is undoubtedly a prerogative of the legislature to abolish certain offices, it can not be conceded the power to simply pronouthose offices vacant and thereby effectively remove the occupants or holders thereof from the civil service. Such an act would constiton its face, an infringement of the constitutional guarantee of security of tenure, and will have to be struck down on that account. It not be justified by the professed "need to professionalize the higher levels of officialdom invested with adjudicatory powers and functioand to upgrade their qualifications, ranks, and salaries or emoluments."

The Constitution does not, of course, ordain the abolition of the petitioners' positions of their removal from their offices; and there isclaim that the petitioners' separation from the service is due to a cause other than RA 6715. The inquiry therefore should be whether orRA 6715 has worked such an abolition of the petitioners' offices, expressly or impliedly. This is the only mode by which, under circumstances, the petitioners' removal from their positions may be defended and sustained.

t is immediately apparent that there is no express abolition in RA 6715 of the petitioners' positions. So, justification must be sought,

all, in an implied abolition thereof; i.e., that resulting from an irreconcilable inconsistency between the nature, duties and functions of



petitioners' offices under the old rules and those corresponding thereof under the new law. An examination of the relevant provisions o6715, with a view to discovering the changes thereby effected on the nature, composition, powers, duties and functions of the Commisand the Commissioners, the Executive Director, the Deputy Executive Director, and the labor Arbiters under the prior legislation, faildisclose such essential inconsistencies.

1. Amendments as Regards the NLRC and the Commissioners

First, as regards the National Labor Relations Commissioners.

A. Nature and Composition of the Commission, Generally

1. Prior to its amendment by RA 6715, Article 213 of the Labor Code envisaged the NLRC as being an integral part of the Departmof labor and Employment. "There shall," it said, "be a National Labor Relations Commission in the Department of Labor and Employment." RA 6715 would appear to have made the Commission somewhat more autonomous. Article 213 now declares that, "There shall bNational labor Relations Commission which shall be attached to the Department of labor and Employment for program coordination on. ."

2. Tripartite representation was to a certain extent restored in the Commission. The same Section 213, as amended, now provthat the Chairman and fourteen (14) members composing the NLRC shall be chosen from the workers', employers' and the public sectas follows:

Five (5) members each shall be chosen from among the nominees of the workers and employers organization, respectively. The Chairmand the four (4) remaining members shall come from the public sector, with the latter to be chosen from among the recommendees of

Secretary of Labor and Employment.

However, once they assume office," the members nominated by the workers and employers organizations shall divest themselves of affiliations with or interest in the federation or association to which they belong."

B. Allocation of Powers Between NLRC En Banc and its Divisions

Another amendment was made in respect of the allocation of powers and functions between the Commission en banc, on the one haand its divisions, on the other. Both under the old and the amended law, the Commission was vested with rule-making and administraauthority, as well as adjudicatory and other powers, functions and duties, and could sit en banc or in divisions of three (3) members eaBut whereas under the old law, the cases to be decided en banc and those by a division were determined by rules laid down by Commission with the approval of the ex officio, Chairman (the Secretary of labor) — said Commission, in other words, then exercise b

administrative and adjudicatory powers — the law now, as amended by RA 6715, provides that —

1) the Commission "shall sit en banc only for purposes of promulgating rules and regulations governing the hearing and dispositiocases before any of its divisions and regional branches and formulating policies affecting its administration and operations;" but

2) it "shall exercise its adjudicatory and all other powers, functions and duties through its divisions."

C. Official Stations, and Appellate Jurisdiction over Fixed Territory

Other changes related to the official station of the Commission and its divisions, and the territory over which the divisions could exerexclusive appellate jurisdiction.

1. Under the old law, the Commission en banc and its divisions had their main office in Metropolitan Manila; and appeals could

taken to them from decisions of Labor Arbiters regardless of the regional office whence the case originated.

2. Under the law now, the First and Second Divisions have their official station in Metropolitan Manila and "handle cases comfrom the National Capital Region;" the Third Division has its main office also in Metropolitan Manila but would have appellate jurisdicover "cases from other parts of Luzon;" and the Fourth and Fifth Divisions have their main offices in Cebu and Cagayan de Oro City, exercise jurisdiction over cases "from the Visayas and Mindanao," respectively; and the appellate authority of the divisions is exclu"within their respective territorial jurisdiction."

D. Qualifications and Tenure of Commissioners

Revisions were also made by RA 6715 with respect to the qualifications and tenure of the National Labor Relations Commissioners.



Prescribed by the old law as qualifications for commissioners — appointed for a term of six (6) years — were that they (a) by memberthe Philippine bar, and (b) have at least five years' experience in handling labor-management relations. 7

RA 6715, on the other hand, requires (a) membership in the bar, (b) engagement in the practice of law for at least 15 years, (c) at leastyears' experience or exposure in the field of labor-management relations, and (d) preferably, residence in the region where commissioner is to hold office. The commissioners appointed shall hold office during good behavior until they reach the age of sixty-(65) years, unless they are sooner removed for cause as provided by law or become incapacited to discharge the duties of their office.

2. Amendments Regarding Executive Labor Arbiters and Labor Arbiters

A. Qualifications

The old provided for one hundred fifty (150) labor arbiters assigned to the different regional offices or branches of the Department of Laand Employment (including sub-regional branches or provincial extension units), each regional branch being headed by an Executive LaArbiter. RA 6715 does not specify any fixed number of labor arbiters, but simply provides that there shall be as many labor arbiters as mbe necessary for the effective and efficient operation of the Commission.

The old law declared that Executive Labor Arbiters and Labor Arbiters should be members of the Bar, with at least two (2) years experien the field of labor management relations. They were appointed by the President upon recommendation of the Chairman, and w

"subject to the Civil Service Law, rules and regulations."

On the other hand, RA 6715 requires that the "Executive Labor Arbiters and Labor Arbiters shall likewise be members of the Philippine Bbut in addition "must have been in the practice of law in the Philippines for at least seven (7) years, with at least three (3) years experie

or exposure in the field of labor-management relations." For "purposes of reappointment," however, "incumbent Executive Labor Arbiand Labor Arbiters who have been engaged in the practice of law for at least five (5) years may be considered as already qualified." Tare appointed by the President, on recommendation of the Secretary of Labor and Employment, and are subject to the Civil Service Lrules and regulations.

B. Exclusive Original Jurisdiction

Before the effectivity of RA 6715, the exclusive original jurisdiction of labor arbiters comprehended the following cases involvingworkers, whether agricultural or non-agricultural:

(1) Unfair labor practice cases;

(2) Those that workers may file involving wages, hours of work and other terms and conditions of employment;

(3) All money claims of workers, including those based on non-payment or underpayment of wages, overtime compensatseparation pay and other benefits provided by law or appropriate agreement, except claims for employees' compensation, social secumedicare and maternity benefits;

(4) Cases involving household services; and

(5) Cases arising from any violation of Article 265 of this Code, including questions involving the legality of strikes and lockouts.

Some changes were introduced by RA 6715, indicated by italics in the enumeration which shortly follows. The exclusive, original jurisdicof Labor Arbiters now embraces the following involving all workers, whether agricultural or non-agricultural:

(1) Unfair labor practice cases;

(2) Termination disputes;

(3) If accompanies with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work other terms and conditions of employment;

(4) Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; 8

(5) Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts;



(6) Except claims for employees compensation, social security, medicare and maternity benefits, all other claims arising femployer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thouspesos (P5,000.00), whether or not accompanies with a claim for reinstatement.

Now, as before, the Labor Arbiters are given thirty (30) calendar days after the submission of the case by the parties to decide the cwithout extension, except that the present statute stresses that "even in the absence of stenographic notes," the period to decide is thirty days, without extension.

Furthermore, RA 6715 provides that "Cases arising from the interpretation or implementation of collective bargaining agreements those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by refer

the same to the grievance machinery and voluntary arbitration as may be provided in said agreements."

3. Amendments as Regards the Executive Director and Deputy Executive Director

Prior to RA 6715, there was, as earlier stated, an Executive Director, assisted by a Deputy Executive Director, who was charged with "exercise (of) the administrative functions of the Commission." 9 More particularly, his chief functions were "to take charge ofadministrative matters of the Commission and to have direct supervision over all units and personnel assigned to perform administratasks." 10 Although not so stated in the law, in the performance of their functions, the Executive Director and the Deputy Executive Direwere obviously themselves subject to the supervision and control of the head of office, the ex officio Chairman of the National LaRelations Commission (the Secretary of Labor), or the Commission itself.

Under RA 6715, the Secretary of Labor is no longer ex officio Chairman of the Commission. There has been created the office of Chairmwho "shall have the administrative supervision over the Commission and its regional branches and all its personnel, including the Execu

Labor Arbiters and Labor Arbiters." In this function, the law says, he shall be "aided by the Executive Clerk of the Commission."

The Executive Clerk appears to be the officer who used to be known under the old law as the Executive Director. The office of ExecuDirector is nowhere mentioned in RA 6715. Said Executive Clerk is given the additional responsibility of assisting the Commission en band the First Division, in performing "such similar or equivalent functions and duties as are discharged by the Clerk of Court . . . of the Cof Appeals." The position of Deputy Executive Clerks have also been created whose main role is to assist the other divisions of Commission (the second, third, fourth and fifth) "in the performance of such similar or equivalent functions and duties as are dischargethe . . . Deputy Clerk(s) of the Court of Appeals."

Summing up —

1. Republic Act No. 6715 did not abolish the NLRC, or change its essential character as a supervisory and adjudicatory body. Un

said Act, as under the former law, the NLRC continues to act collegially, whether it performs administrative or rule-making functionsexercises appellate jurisdiction to review decisions and final orders of the Labor Arbiters. The provisions conferring a somewhat gremeasure of autonomy; requiring that its membership be drawn from tripartite sectors (workers, employees and the public sector); chanthe official stations of the Commission's divisions, and even those prescribing higher or other qualifications for the positionsCommissioner which, if at all, should operate only prospectively, not to mention the fact that the petitioners (in G.R. No. 91547) hasserted without dispute that they possess the new qualifications — none of these can be said to work so essential or radical a revisiothe nature, powers and duties of the NLRC as to justify a conclusion that the Act in truth did not merely declare vacant but actuabolished the offices of commissioners and created others in their place.

2. Similar considerations yield the same conclusion as far as the positions of Labor Arbiters are concerned, there being no essennconsistency on that score between Republic Act No. 6715 and the old law. The Labor Arbiters continue to exercise the same basic po

and function: the adjudication, in the first instance, of certain classes of labor disputes. Their original and exclusive jurisdiction remsubstantially the same under both the old law and the new. Again, their incumbents' constitutionally guaranteed security of tenure can

be defeated by the provision for higher or other qualifications than were prescribed under the old law; said provision can only operprospectively and as to new appointees to positions regularly vacated; and there is, besides, also no showing that the petitioning Arbitdo not qualify under the new law.

3. The position titles of "Executive Clerk" and "Deputy Executive Clerk(s)" provided for in RA 6715 are obviously not those of necreated offices, but new appellations or designations given to the existing positions of Executive Director and Deputy Executive DirecThere is no essential change from the prescribed and basically administrative duties of these positions and, at the same time, no mentiothe Act of the former titles, from which the logical conclusion is that what was intended was merely a change in nomenclature, noexpress or implied abolition. Neither does the Act specify the qualifications for Executive Clerk and Deputy Executive Clerks. There isreason to suppose that these could be higher than those for Executive Director and Deputy Executive Director, or that anything inherethese positions that would preclude their incumbents from being named Executive Clerk and Deputy Executive Clerks.

WHEREFORE, the petitions are, as they must be, GRANTED , and the following specific dispositions are hereby RENDERED:



1. In G.R. No. 91547, and G.R. No. 91730, the removal of petitioners Rosario G. Encarnacion, Daniel M. Lucas, Jr., Ceferino E. Duand Conrado Maglaya as Commissioners of the NLRC is ruled unconstitutional and void; however, to avoid displacement of any of ncumbent Commissioners now serving, it not appearing that any of them is unfit or has given cause for removal, and conformably to

alternative prayer of the petitioners themselves, it is ORDERED that said petitioners be paid all salaries, benefits and emoluments accruto them for the unexpired portions of their six-year terms and allowed to enjoy retirement benefits under applicable laws, pursuant toNo. 910 and this Court's Resolution in Ortiz vs. Commission on Elections, G.R. No. 79857, 161 SCRA 812;

This disposition does not involve or apply to respondent Hon. Bartolome Carale, who replaced the Secretary of Labor as ex officio Chairmof the NLRC pursuant to RA 6715, none of the petitioners having been affected or in any manner prejudiced by his appointment

ncumbency as such;

2. In G.R. No. 90044, the removal of petitioner Pascual Y. Reyes and petitioner-in-intervention Eugenio L. Sagmit, Jr. as NExecutive Director and Deputy Executive Director, respectively, is likewise declared unconstitutional and void, and they are ordereinstated as Executive Clerk and Deputy Executive Clerk, respectively, unless they opt for retirement, in either case with full back salaremoluments and benefits from the date of their removal to that of their reinstatement; and

3. In G.R. Nos. 87211, and 94518, petitioners-intervenors Lourdes A. Sales and Ricardo Olairez and petitioner Rolando D. Gambhaving also been illegally removed as Labor Arbiters, are ordered reinstated to said positions with full back salaries, emoluments benefits from the dates of their removal up to the time they are reinstated.

No pronouncement as to costs.

SO ORDERED.G.R. No. 92008 July 30, 1990RAMON P. BINAMIRA, petitiovs.PETER D. GARRUCHO, JR., respondent.Ledesma, Saludo & Associates for petitioner.

CRUZ, J.: n this petition for quo warranto, Ramon P. Binamira seeks reinstatement to the office of General Manager of the Philippine Tour

Authority from which he claims to have been removed without just cause in violation of his security of tenure.The petitioner bases his claim on the following communication addressed to him by the Minister of Tourism on April 7, 1986:

MEMORANDUM TO: MR. RAMON P. BINAMIRA

You are hereby designated General Manager of the Philippine Tourism Authority, effective immediately.By virtue hereof, you may qualify and enter upon the performance of the duties of the office.(Sgd.) JOSE ANTONIO GONZALES Minister of Tourism and Chairman, P.T.A. Board

Pursuant thereto, the petitioner assumed office on the same date.On April 10, 1986, Minister Gonzales sought approval from President Aquino of the composition of the Board of Directors of the PTA, wncluded Binamira as Vice-Chairman in his capacity as General Manager. This approval was given by the President on the same date.

1

Binamira claims that since assuming office, he had discharged the duties of PTA General Manager and Vice-Chairman of its BoardDirectors and had been acknowledged as such by various government offices, including the Office of the President.He complains, though, that on January 2, 1990, his resignation was demanded by respondent Garrucho as the new Secretary of TourBinamira's demurrer led to an unpleasant exchange that led to his filing of a complaint against the Secretary with the CommissionHuman Rights. But that is another matter that does not concern us here.What does is that on January 4, 1990, President Aquino sent respondent Garrucho the following memorandum,

2copy furnished Binamir

4 January 1990

MEMORANDUM TO: Hon. Peter D. Garrucho, Jr.. Secretary of TourismIt appearing from the records you have submitted to this Office that the present General Manager of the PhilippTourism Authority was designated not by the President, as required by P.D. No. 564, as amended, but only by Secretary of Tourism, such designation is invalid. Accordingly, you are hereby designated concurrently as GenManager, effective immediately, until I can appoint a person to serve in the said office in a permanent capacity.Please be guided accordingly.(Sgd.) CORAZON C. AQUINOcc: Mr. Ramon P. Binamira Philippine Tourism Authority Manila

Garrucho having taken over as General Manager of the PTA in accordance with this memorandum, the petitioner filed this action agahim to question his title. Subsequently, while his original petition was pending, Binamira filed a supplemental petition alleging that on A6, 1990, the President of the Philippines appointed Jose A. Capistrano as General Manager of the Philippine Tourism Authority. Capistrwas impleaded as additional respondent.

The issue presented in this case is starkly simple.





appointment required to be made by the President herself, and not the Minister of Tourism, under Sec. 23 of P.D. No. 564. We must therefore that the petitioner never acquired valid title to the disputed position and so has no right to be reinstated as General Managethe Philippine Tourism Authority.WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea

Regalado, JJ., concur. Fernan, C.J., took no part.

G.R. NO. L-69137 August 5, 1986FELIMON LUEGO, petitioner-appell

vs.CIVIL SERVICE COMMISSION and FELICULA TUOZO, respondents-appellees.Jose Batiquin for petitioner-appellant.

Fausto F. Tugade for private respondent-appellee.

CRUZ, J.: Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record, the facts of this case may be brnarrated as follows:The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by Mayor Florentino Solon on February1983.

1 The appointment was described as permanent" but the Civil Service Commission approved it as "temporary," subject to the f

action taken in the protest filed by the private respondent and another employee, and provided "there (was) no pending administracase against the appointee, no pending protest against the appointment nor any decision by competent authority that will adversely affthe approval of the appointment."

2 On March 22, 1984, after protracted hearings the legality of which does not have to be decided he

the Civil Service Commission found the private respondent better qualified than the petitioner for the contested position and, accordindirected "that Felicula Tuozo be appointed to the position of Administrative Officer 11 in the Administrative Division, Cebu City, in placFelimon Luego whose appointment as Administrative Officer II is hereby revoked."

3 The private respondent was so appointed on June

1984, by the new mayor, Mayor Ronald Duterte.4 The petitioner, invoking his earlier permanent appointment, is now before us to ques

that order and the private respondent's title.The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that anotperson is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?The Solicitor General, rather than face the question squarely, says the petitioner could be validly replaced in the instant case becauseappointment was temporary and therefore could be withdrawn at will, with or without cause. Having accepted such an appointment, argued, the petitioner waived his security of tenure and consequently ran the risk of an abrupt separation from his office without violaof the Constitution.

5

While the principle is correct, and we have applied it many times, 6

it is not correctly applied in this case. The argument begs the quest

The appointment of the petitioner was not temporary but permanent and was therefore protected by Constitution. The appoinauthority indicated that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service Commissionreverse him and call it temporary.The stamping of the words "APPROVED as TEMPORARY" did not change the character of the appointment, which was clearly described"Permanent" in the space provided for in Civil Service Form No. 33, dated February 18, 1983.

7 What was temporary was the approval of

appointment, not the appointment it sell And what made the approval temporary was the fact that it was made to depend on the condispecified therein and on the verification of the qualifications of the appointee to the position.The Civil Service Commission is not empowered to determine the kind or nature of the appointment extended by the appointing officerauthority being limited to approving or reviewing the appointment in the light of the requirements of the Civil Service Law. When appointee is qualified and authorizing the other legal requirements are satisfied, the Commission has no choice but to attest to appointment in accordance with the Civil Service Laws.As Justice Ramon C. Fernandez declared in an earlier case:

It is well settled that the determination of the kind of appointment to be extended lies in the official vested by law w

the appointing power and not the Civil Service Commission. The Commissioner of Civil Service is not empowereddetermine the kind or nature of the appointment extended by the appointing officer. When the appointee is qualifiedin this case, the Commissioner of Civil Service has no choice but to attest to the appointment. Under the Civil Service LPresidential Decree No. 807, the Commissioner is not authorized to curtail the discretion of the appointing official onnature or kind of the appointment to be extended.

8

ndeed, the approval is more appropriately called an attestation, that is, of the fact that the appointee is qualified for the position to whhe has been named. As we have repeatedly held, such attestation is required of the Commissioner of Civil Service merely as a checassure compliance with Civil Service Laws.

9

Appointment is an essentially discretionary power and must be performed by the officer in which it is vested according to his best ligthe only condition being that the appointee should possess the qualifications required by law. If he does, then the appointment cannotfaulted on the ground that there are others better qualified who should have been preferred. This is a political question involconsiderations of wisdom which only the appointing authority can decide.



t is different where the Constitution or the law subjects the appointment to the approval of another officer or body, like the Commisson Appointments under 1935 Constitution.

10 Appointments made by the President of the Philippines had to be confirmed by that body

could not be issued or were invalidated without such confirmation. In fact, confirmation by the Commission on Appointments was tconsidered part of the appointing process, which was held complete only after such confirmation.

11

Moreover, the Commission on Appointments could review the wisdom of the appointment and had the power to refuse to concur witeven if the President's choice possessed all the qualifications prescribed by law. No similar arrangement is provided for in the Civil SerDecree. On the contrary, the Civil Service Commission is limited only to the non-discretionary authority of determining whether or not person appointed meets all the required conditions laid down by the law.t is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says

Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the Commission shag have in

alia the power to:9(h) Approve all appointments, whether original or promotional to positions in the civil service, except those presidenappointees, members of the Armed Forces of the Philippines, police forces, firemen, and jailguards, and disapprove th

where the appointees do not possess appropriate eligibility or required qualifications. (emphasis supplied)However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commission is actually allowedo is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. If he does,appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Commission when it aon--or as the Decree says, "approves" or "disapproves" an appointment made by the proper authorities.Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for position in controversy.

12 That recognition alone rendered it functus officio in the case and prevented it from acting further thereon exc

to affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the said appointment simply becausbelieved that the private respondent was better qualified for that would have constituted an encroachment on the discretion vested son the city mayor.

n preferring the private respondent to the petitioner, the Commission was probably applying its own Rule V, Section 9, of Civil SerRules on Personnel Actions and Policies, which provides that "whenever there are two or more employees who are next-in-rank, prefereshall be given to the employee who is most competent and qualified and who has the appropriate civil service eligibility." This rulnapplicable, however, because neither of the claimants is next in rank. Moreover, the next-in-rank rule is not absolute as the Civil Ser

Decree allows vacancies to be filled by transfer of present employees, reinstatement, re-employment, or appointment of outsiders whave the appropriate eligibility.

13

There are apparently no political overtones in this case, which looks to be an honest contention between two public functionaries who esincerely claims to be entitled to the position in dispute. This is gratifying for politics should never be permitted to interfere in the apoliorganization of the Civil Service, which is supposed to serve all the people regardless of partisan considerations. This political detachmwill be impaired if the security of tenure clause in the Constitution is emasculated and appointments in the Civil Service are revoked changed at will to suit the motivations and even the fancies of whatever party may be in power.WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22, 1984, is set aside, and the petitioner is her

declared to be entitled to the office in dispute by virtue of his permanent appointment thereto dated February 18, 1983. No costs.SO ORDERED.Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur. G.R. No. 81467 October 27, 1989NARCISO Y. SANTIAGO, JR. petitiovs.CIVIL SERVICE COMMISSION and LEONARDO A. JOSE, respondents.Ambrosio Padilla, Mempin & Reyes Law Offices for petitioner.

Leonardo A. Jose for himself as private- respondent.

MELENCIO-HERRERA, J.: Resolution No. 87-554 of the Civil Service Commission, dated 28 December 1987, revoking the promotional appointment of petitioNarcisco Y. SANTIAGO, Jr., from Collector of Customs I to Collector of Customs III and directing instead the appointment of priv

respondent, Leonardo A. JOSE, to the same position, is sought to be reviewed and reversed herein.On 18 November 1986, then Customs Commissioner Wigberto E. Tañada extended a permanent promotional appointment, as CustoCollector III, to petitioner SANTIAGO, Jr. That appointment was approved by the Civil Service Commission (CSC), National Capital RegOffice. Prior thereto, SANTIAGO held the position of Customs Collector I.On 26 November 1986, respondent JOSE, a Customs Collector II, filed a protest with the Merit Systems Promotion Board (the Board,short) against SANTIAGO's promotional appointment mainly on the ground that he was next-in-rank to the position of Collector of CustII.

Pursuant to Section 19(6) of Presidential Decree No. 807 (the Civil Service Decree), the Board referred the protest to Commissioner Tanfor appropriate action.n reply, said official upheld SANTIAGO's promotional appointment on the grounds, among others, that: (1) the next-in-rank rule isonger mandatory; (2) the protestee is competent and qualified for the position and such fact was not questioned by the protestant; and

existing law and jurisprudence give wide latitude of discretion to the appointing authority provided there is no clear showing of grave ab

of discretion or fraud.



On 29 December 1986, respondent JOSE appealed to the Board (MSB Case No. 1410), which, on 17 March 1987, decided to revpetitioner SANTIAGO's appointment and directed that respondent JOSE be appointed in his stead.On 15 July 1987, the Board resolved to deny SANTIAGO's Motion for Reconsideration for lack of merit.On 28 December 1987, respondent Commission affirmed the Board Resolutions in its own Resolution No. 87-554. The Commission ruthat although both SANTIAGO and JOSE are qualified for the position of Customs Collector III, respondent JOSE has far better qualificatin terms of educational attainment, civil service eligibilities, relevant seminars and training courses taken, and holding as he does

permanent appointment a position which is higher in rank and salary range. It added that the Commission is empowered to administer enforce the merit system as mandated by the 1973 and 1987 Constitutions and to approve all appointments, whether originapromotional, to positions in the civil service, subject to specified exceptions, pursuant to paragraphs (a) and (h), Section 9 of the CService Law.

Hence, this certiorari Petition filed by SANTIAGO.On 10 February 1988 the Second Division issued a Temporary Restraining Order enjoining respondents from enforcing CSC Resolution 87-554. However, on 24 October 1988, for failure to acquire jurisdiction over the person of respondent JOSE, that Division resolveddismiss the Petition and lifted the Temporary Restraining Order. Upon SANTIAGO's Motion for Reconsideration, the same Division allowhim a period of thirty (30) days within which to locate respondent JOSE'S present address. After having been located and furnished Court's previous Resolutions, JOSE manifested his intent to adopt in toto the Comment filed by the Solicitor General for respondent CSC

On 4 October 1989, pursuant to an adopted policy, the Second Division referred the case to the Court en banc. We grant reconsideration of our Order of dismissal and reinstate the Petition.After considering the pleadings filed, the constitutional and statutory provisions invoked, the jurisprudence cited and legal argumeadduced, we are constrained to reverse.We need only recall our previous ruling in Taduran vs. Civil Service Commission (L-52051, 31 July 1984, 131 SCRA 66) stating that ther"no mandatory nor peremptory requirement in the (Civil Service Law) that persons next-in-rank are entitled to preference in appointmeWhat it does provide is that they would be among the first to be considered for the vacancy, if qualified, and if the vacancy is not filled

promotion, the same shall be filled by transfer or other modes of appointment."One who is next-in-rank is entitled to preferential consideration for promotion to the higher vacancy but it does not necessarily follow the and no one else can be appointed. The rule neither grants a vested right to the holder nor imposes a ministerial duty on the appoinauthority to promote such person to the next higher position. As provided for in Section 4, CSC Resolution No. 83- 343:

Section 4. An employee who holds a next-in- rank position who is deemed the most competent and qualified, possean appropriate civil service eligibility, and meets the other conditions for promotion shall be promoted to the higposition when it becomes vacant.However, the appointing authority may promote an employee who is not next-in-rank but who possesses supequalifications and competence compared to a next-in-rank employee who merely meets the minimum requirementsthe position.

The former Customs Commissioner had explained the reasons behind petitioner's appointment in his reply to the Merit Systems Bothus:

Suffice it to state that both Jose and the protestee are customs collectors. On 31 January 1984, Jose was assignedPanganiban, Camarines Norte, but he never assumed that position. For the past five years, there is no official recordany activity that recommends him for promotion.On the other hand, after the February revolution, the Protestee was immediately designated by the undersigned as Cof a task force which has been credited with the seizure of millions of pesos worth of smuggled shipments. Each one duly recorded, not only in the official files, but also in the media.For the services, the undersigned saw fit, not only to promote the Protestee but also to designate him as my speassistant.It may likewise be mentioned that Protestee has been the recipient of citations awarded by the Customs Commissiofor the two consecutive years 1984 and 1985, for exemplary performance of official duties, particularly investigation prosecution. More specifically, the latest citation commends the Protestee for his pivotal role in the seizure and forfeiof an ocean-going vessel upheld by the Supreme Court, which constituted a first in the history of this Bureau.

The power to appoint is a matter of discretion. The appointing power has a wide latitude of choice as to who is best qualified for

position (Ocampo vs. Subido, L-28344, August 27, 1976, 72 SCRA 443). To apply the next-in-rank rule peremptorily would impose a rformula on the appointing power contrary to the policy of the law that among those qualified and eligible, the appointing authoritgranted discretion and prerogative of choice of the one he deems fit for appointment (Pineda vs. Claudio, L- 29661 May 13, 1969, 28 SC34).The case of Meram vs. Edralin (L-71228, September 24,1987, 154 SCRA 238) is inapplicable to the factual situation herein. In said case,affirmed the appointment of the next- in-rank because the original appointee's appointment was made in consideration of political, ethreligious or blood ties totally against the very purpose behind the establishment of professionalism in the civil service.True, the Commission is empowered to approve all appointments, whether original or promotional, to positions in the civil service disapprove those where the appointees do not possess the appropriate eligibility or required qualification (paragraph (h), Section 9, No. 807). However, consistent with our ruling in Luego vs. CSC (L-69137, 5 August 1986,143 SCRA 327), "all the commission is actuallowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or the required qualifications. Idoes, his appointment is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by the Co mmission w

t acts on, or as the decree says, "approves" or "disapproves" an appointment made by the proper authorities. ...To be sure, it has





G.R. No. 88467 : Alunan C . Glang Alunan Glang was appointed by President Aquino on September 11, 1986 as Ambassador Extraordinary and Plenipotentiary and ChieMission (Class I) to Kuwait,

8 and assumed his post on January 11, 1987.

9

Two years afterwards, or on May 27, 1989, he received a telex message from the Secretary of Foreign Affairs informing him that his servas ambassador and chief of mission to Kuwait had been terminated and directing him to vacate his post "on or before June 30, 1989."

10

message further advised that the termination of his services was "explicit in a Memorandum dated 18 May 1989" a copy of which wouldfurnished him by telefax. The memorandum referred to was one signed by Secretary Raul Manglapus recommending the "recall subsequent termination of the services of Ambassador Alunan C. Glang as Ambassador to the State of Kuwait . . . which was approvedExecutive Secretary Catalino Macaraig, Jr. "BY AUTHORITY OF THE PRESIDENT."

11

On May 30, 1989 Glang sent communications separately addressed to the Office of the President and the Secretary of Foreign Aff

stating that he considered his separation from the service as "illegal and violative of RA No. 704, known as the Foreign Service Act of 19as amended, he being entitled to security of tenure and removable only for cause and not at the pleasure of the President.12

The ForSecretary's reply (sent by telex on June 2, 1989) was prompt and simple: the notice of termination of Glang's services "dated 26 May 19stands;" he should "accept the President's decision" and seek redress "only through the proper courts of law" if he felt he had b"unlawfully treated."

13

Glang thereupon filed the petition for certiorari and prohibition at bar. For relief, he relies upon substantially the same arguments as thadvanced by Astraquillo, supra.

14

G.R. Nos. 88672 and 88916: Alejandro Melchor, Jr .Alejandro Melchor, Jr. was also appointed by President Aquino Ambassador Extraordinary and Plenipotentiary on June 27, 1986.

15 On

3, 1986, Vice-President Salvador H. Laurel, then Foreign Affairs Minister, assigned him to Moscow, U.S.S.R.16

This post Melchor assumedSeptember 4, 1986,

17 after which he received another appointment from the President on October 15, 1986 as Chief of Mission, Class, 1

On July 25, 1988, seven (7) officers and employees of the Philippine Embassy in Moscow19

filed a complaint with the Department of ForAffairs against Melchor and two others

20 for "acts inimical to the Foreign Service, in violation of the Foreign Service Code (and) blat

disregard of COA rules and regulations and the Civil Service Code." 21 The complaint was investigated by Ambassador Ernesto GarrDirector General for Financial Management Services of the Foreign Affairs Department, by direction of the Secretary.

22 Garrido's repo

the Board of Foreign Service Administration (BSFA) of the Foreign Affairs Department dealt with ten of the fourteen (14) charges but fato resolve four (4) others.

23 Said Board, after deliberating on the report, directed the filing of a charge sheet against Melchor relative to

four (4) unresolved accusations as to which the latter had filed no written answer;24

and accordingly, the Director General for Personand Administrative Services formally charged Melchor, under date of January 2,1989, with the following offenses, to wit:

25

1) establishment of a private restaurant on the third floor of the Philippine Embassy Building without prior notice aapproval of the Home Office;2) issuance of visas to persons not qualified to travel to the Philippines;3) appointment and accreditation of Hernani Jover and Donato de Guzman as Counsellors contrary to existing laws; an4) leaving his post without permission from the Home Office from October to December 1987 and January 22-26, 1988

By letter dated January 10, 1989, Melchor told the Foreign Affairs Secretary there was "no basis for me to reply under oath" (to the cha

as required) as "said complaint has not been subscribed and sworn to according to the provisions of P.D. 807," drawing attent ion, howeto his reply "to the complaint on 22 September 1988 Dispatch No. AM-193-88, Subject: Comments to complaint."26

He also wrotPresident Aquino on the same date regarding the "unfounded charges" against him and requesting that the matter be resolved beforereturn to his post.

27 He wrote another letter to President Aquino, dated January 19, 1989, this time under oath, inter alia submitting

answers to the four unresolved charges against him since, according to him, "it is only the President that can decide my case."28

Melchetter was referred to the Secretary

29 who, acting thereon, issued Memorandum No. 4230 declaring his approval of the B

recommendation that Melchor: (a) be allowed to forthwith return to his Moscow post to prepare for the President's state visit, (bthereafter transferred to another post, and (c) be reprimanded on account of the four charges against him.

30

The affair was, however, far from ended. On February 10, 1989, Melchor advised the Secretary in writing that he would indeed returMoscow but protested the reprimand administered to him and his announced transfer to another post after the state visit, claiming thaa "presidential appointee," he was beyond the disciplinary authority of the BFSA and that, furthermore, he had been denied process.

31 On the same day he directed an "APPEAL" to the President praying that she "nullify, after review by an impartial body . . .

llegal action of Sec. Manglapus and the Board and return . . . (him to his) post in Moscow without the stigma of a reprimand . . . ." 32

t appears that the BFSA re-examined the evidence against Melchor and came to the conclusion that all charges against him shoulddropped as there was "no basis" therefor and consequently, his appeal had been rendered moot and academic.

33 This was communica

to the Foreign Affairs Secretary on June 9, 1989 and thence to the Office of the President, with the observation that Melchor's appeal ndeed become moot and academic. On the basis thereof, Executive Secretary Macaraig "terminated" the administrative case aga

Melchor, by Order dated June 9, 1989.34

t appears, however, that about a week earlier, or on May 29, 1989, the Secretary of Foreign Affairs had submitted a Memorandum to

President recommending the termination of the services of Melchor — described as "a political (non-career) Ambassador" — as ChieMission and as Ambassador" to the U.S.S.R, and that he "should vacate his post by 30 June 1989."

35 This was "APPROVED by authorit

the President" on June 13, 1989 by Executive Secretary Macaraig.36

On June 28, 1989 Melchor presented the petition at bar, grounded mainly on the proposition that the termination of his services by ForAffairs Secretary Manglapus after he had been absolved of the charges against him, was unwarranted and illegal, and that the authoritso terminate his services was "vested exclusively on the President herself . . . ."



Subsequently, Melchor filed a second petition, docketed as G.R. No. 88916, seeking invalidation of the re-assignment or transfeAmbassador Juan V. Saez from Amman, Jordan to the Philippine Embassy at Moscow.

37

Against this factual background, the petitioners submit the following common contentions:38

1) that the removals from the service were not made by the President personally and directly;2) that the removals did not state a cause explicitly prescribed by the Foreign Service Act or the Civil Service Law;3) that the removals were affected without due process;4) the petitioners were appointed right after the so-called "EDSA Revolution," and when Vice-President Laurel Minister of Foreign Affairs; and5) all were appointed Chief of Mission Class I (except Astraquillo, who was named Class II Chief) and came into ForeService "through lateral entry."

The Civil Service Law, Presidential Decree No. 807, classifies employment in Government into "career" and "non-career service." It identthe peculiar characteristics of each category, and enumerates the positions falling under each class.Thus, Section 5 of said PD No. 807 states that the "career service" is characterized by:

(1) entrance based on merit and fitness, to be determined as far as practicable by competitive examinations, or basedhighly technical qualifications;(2) opportunity for advancement to higher career positions; and(3) security of tenure.

Section 5 then enumerates the particular positions falling under the Career Service, including, as will be noted, those in the Foreign ServThey are the following:

39

(1) Open Career positions for appointment to which prior qualifications in an appropriate examination is required;(2) Closed Career positions which are scientific or highly technical in nature; these includes the faculty and academic sof state colleges and universities and scientific and technical positions in scientific or research institutions which sestablish and maintain their own merit systems;

(3) Positions in the Career Executive Service, namely: Undersecretary, Assistant Secretary, Bureau Director, AssisBureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officersequivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the Presiden(4) Career officers, other than those in the Career Executive Service, who are appointed by the President, suchthe Foreign Service Officers in the Ministry of Foreign Affairs; (5) Commissioned officers and enlisted men of the Armed Forces which shall maintain a separate merit system;(6) Personnel of government-owned or controlled corporations, whether performing governmental or propriefunctions, who do not fall under the non-career service; and(7) [(7)] Permanent laborers, whether skilled, semi-skilled, or unskilled.

(8) The "Non-Career Service," on the other hand, according to Section 6 of the same PD 807, shall be characterized by:40

(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 autho

or subject to his pleasures, or which is limited to the duration of a particular project for which purposes employment made.And the officials and employees listed under the Non-Career Service include:

(1) Elective officials and their personal or confidential staff;(2) Department Heads and other officials of Cabinet rank who hold positions at the pleasure of the President and tpersonal or confidential staff(s);(3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential sta(4) Contractual personnel or those whose employment in the government is in accordance with a special contracundertake a specific work or job, requiring special or technical skills not available in the employing agency, toaccomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the spework or job, under his own responsibility with a minimum of directions and supervision from the hiring agency; and(5) Emergency and seasonal personnel.

By these statutory standards, it seems plain that all three (3) petitioners: Isabelo J. Astraquillo, Alunan C. Glang, and Alejandro Melchor,

pertained to the Non-Career Service. Their appointments to the Foreign Service were made on "bases other than those of the usual tesmerit and fitness utilized for the career service;" their entrance was not 'based on merit and fitness . . . determined . . . by competitexaminations, or based on highly technical qualifications." This being so, their "tenure . . . (was) coterminous with that of the appoinauthority or subject to his pleasures, . . . ."t is worthy of note that among the officers categorized in the Career Service by the Civil Service Law, PD No. 807, are "Career officers, o

than those in the Career Executive Service, who are appointed by the President, such as the Foreign Service Officers in the MinistryForeign Affairs." Implicit in this reference to "career officers" in the Ministry (now Department) of Foreign Affairs is the acknowledgemof non-career officers in that ministry (department).The same distinction between career and non-career officers may be derived by implication from the provisions of the Foreign Service of 1952, R.A. No. 708, as amended.Part B, Title III of said Foreign Service Act deals with the "Career Service Corps . . . composed of Foreign Service Officers appointed byPresident upon the recommendation of the Secretary," and declares that "(n)o person shall be eligible for appointment (in such co

unless he has passed such competitive examinations as the Board of Foreign Service examination may prescribe to determine his fitn



and aptitude for the work of the service and has demonstrated his loyalty to the Government of the Republic of the Philippines andattachment to the principles of the Constitution."

41 Those who thus qualify are "certified by the Secretary of Foreign Affairs as eligible

appointment as Foreign Service Officer(s)," and it is exclusively from these officers so certified that the President "shall appoint ForeService Officers . . . ."

42

Now, there are those, like the petitioners, who are appointed to the Foreign Service, without having qualified in the manner just indicaand consequently without having been certified by the Foreign Affairs Secretary as eligible for appointment as Foreign Service Officers.view of the provisions of law just cited, they certainly do not and cannot be deemed embraced in the Career Service Corps. They can obe regarded then as "non-career officers" or "political appointees" who, as already pointed out, have a "tenure . . . coterminous with thathe appointing authority or subject to his pleasures, . . . ."Melchor discusses at length what he feels to be the distinction between an ambassador and a chief of mission, and argues that whate

might be said about his serving at the pleasure of the President as ambassador , his appointment as chief of mission had undoubtedly ghim security of tenure as regards this latter position. He opines that the term, " chief of mission," has two meanings in the Foreign SerAct.He states that Section 3(i), Title I of the Act defines the term as "a principal officer appointed by the President of the Philippines, with consent of the Commission on Appointments, to be in charge of the embassy and legation and other diplomatic mission of the Philippor any other person assigned under the terms of this act to be minister resident, charge d'affaires, commissioner or diplomatic agent."

4

the other hand, he says that in other parts of the law ("Title II, Part B, Section I, Part C, Section 1 , and Title I, Part B, Section 1") "the usethe term Chief of Mission is in a different context for it refers to the rank and class of the Foreign Service Officer in the enumerationcategories of officers and employees of the foreign service as well as the salary scale.

45

The discussion fails to demonstrate that, with regard to the petitioners, a chief of mission is indeed significantly different fromambassador. Petitioners Astraquillo, Glang and Melchor were appointed as ambassadors, respectively, in the United Arab Emirates (UKuwait, and Moscow. Their appointments as chief of missions in their respective posts simply meant that, as ambassadors extraordinand plenipotentiary they were being placed in charge of the embassy or legation therein. Indeed, it seems evident that even without be

named chief of mission, the fact that they were the highest ranking official in their respective embassies would operate to place themcharge thereof as a matter of course.Obviously, however, this aspect of their appointments has no effect on the essential character of their positions as pertaining to the ncareer service. Consequently the termination of their connection with the Foreign Service was not dependent on proof of some legrecognized cause therefor, after due notice and hearing — as in the case of career officers and employees — but lay entirely within theof the President, in the exercise of her discretion, and her determination of the wisdom, necessity or convenience of such a step innational interest, actually a political decision. In making this determination, the President may take account of the recommendation ofSecretary of Foreign Affairs who, as the President's alter ego, heads and controls the Department of Foreign Affairs and supervises directs all officials and employees assigned abroad.

46

The petitioners' other argument that their separation from the service is illegal because not effected by the President of the Philippiwho alone has the power to do so, is specious. The fact is that it was in truth the President who ordered their removal. The record shothat the President approved the recommendation of the Secretary of Foreign Affairs for the termination of their services. This is shown

the pertinent documents in which the Executive Secretary officially certified that the recommendation for their separation from the serhad been "APPROVED by Authority of the President."Finally, since none of the petitioners has shown any right to be returned to the office from which they had been separated by authoritythe President, none of them is entitled to the writ of quo warranto to oust the officials who have since replaced them in their respecposts.WHEREFORE, the petitions in the cases embraced in this opinion, i .e., G.R. Nos. 88183, 88781, 88467, 88672, 888916, are all DENIED, wcosts against petitioners.Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado,

concur. Fernan, C.J. and Paras, J., is on leave.

G.R. No. 85279 July 28, 1989SOCIAL SECURITY SYSTEM EMPLOYEES ASSOCIATION (SSSEA), DIONISION T. BAYLON, RAMON MODESTO, JUANITO MADURA, REU

ZAMORA, VIRGILIO DE ALDAY, SERGIO ARANETA, PLACIDO AGUSTIN, VIRGILIO MAGPAYO, petitiovs.THE COURT OF APPEALS, SOCIAL SECURITY SYSTEM (SSS), HON. CEZAR C. PERALEJO, RTC, BRANCH 98, QUEZON CITY, respondents.Vicente T. Ocampo & Associates for petitioners.

CORTES, J: Primarily, the issue raised in this petition is whether or not the Regional Trial Court can enjoin the Social Security System EmployAssociation (SSSEA) from striking and order the striking employees to return to work. Collaterally, it is whether or not employees of Social Security System (SSS) have the right to strike.The antecedents are as follows:On June 11, 1987, the SSS filed with the Regional Trial Court of Quezon City a complaint for damages with a prayer for a writ of preliminnjunction against petitioners, alleging that on June 9, 1987, the officers and members of SSSEA staged an illegal strike and baricaded

entrances to the SSS Building, preventing non-striking employees from reporting for work and SSS members from transacting business w



the SSS; that the strike was reported to the Public Sector Labor - Management Council, which ordered the strikers to return to work; tthe strikers refused to return to work; and that the SSS suffered damages as a result of the strike. The complaint prayed that a wrpreliminary injunction be issued to enjoin the strike and that the strikers be ordered to return to work; that the defendants (petitionherein) be ordered to pay damages; and that the strike be declared illegal.t appears that the SSSEA went on strike after the SSS failed to act on the union's demands, which included: implementation of

provisions of the old SSS-SSSEA collective bargaining agreement (CBA) on check-off of union dues; payment of accrued overtime pay, ndifferential pay and holiday pay; conversion of temporary or contractual employees with six (6) months or more of service into regular permanent employees and their entitlement to the same salaries, allowances and benefits given to other regular employees of the SSS;payment of the children's allowance of P30.00, and after the SSS deducted certain amounts from the salaries of the employees allegedly committed acts of discrimination and unfair labor practices [Rollo, pp. 21-241].

The court a quo, on June 11, 1987, issued a temporary restraining order pending resolution of the application for a writ of preliminnjunction [Rollo, p. 71.] In the meantime, petitioners filed a motion to dismiss alleging the trial court's lack of jurisdiction over the submatter [Rollo, pp. 72-82.] To this motion, the SSS filed an opposition, reiterating its prayer for the issuance of a writ of injunction [Rollo,209-222]. On July 22,1987, in a four-page order, the court a quo denied the motion to dismiss and converted the restraining order intonjunction upon posting of a bond, after finding that the strike was illegal [Rollo, pp. 83- 86]. As petitioners' motion for the reconsidera

of the aforesaid order was also denied on August 14, 1988 [Rollo, p. 94], petitioners filed a petition for certiorari and prohibition wpreliminary injunction before this Court. Their petition was docketed as G.R. No. 79577. In a resolution dated October 21, 1987, the Cothrough the Third Division, resolved to refer the case to the Court of Appeals. Petitioners filed a motion for reconsideration thereof, during its pendency the Court of Appeals on March 9,1988 promulgated its decision on the referred case [Rollo, pp. 130-137]. Petitionmoved to recall the Court of Appeals' decision. In the meantime, the Court on June 29,1988 denied the motion for reconsideration in No. 97577 for being moot and academic. Petitioners' motion to recall the decision of the Court of Appeals was also denied in view of Court's denial of the motion for reconsideration [Rollo, pp. 141- 143]. Hence, the instant petition to review the decision of the CourAppeals [Rollo, pp. 12-37].

Upon motion of the SSS on February 6,1989, the Court issued a temporary restraining order enjoining the petitioners from staging anostrike or from pursuing the notice of strike they filed with the Department of Labor and Employment on January 25, 1989 and to mainthe status quo [Rollo, pp. 151-152].The Court, taking the comment as answer, and noting the reply and supplemental reply filed by petitioners, considered the issues joiand the case submitted for decision.The position of the petitioners is that the Regional Trial Court had no jurisdiction to hear the case initiated by the SSS and to issue restraining order and the writ of preliminary injunction, as jurisdiction lay with the Department of Labor and Employment or the NatioLabor Relations Commission, since the case involves a labor dispute.On the other hand, the SSS advances the contrary view, on the ground that the employees of the SSS are covered by civil service laws rules and regulations, not the Labor Code, therefore they do not have the right to strike. Since neither the DOLE nor the NLRC jurisdiction over the dispute, the Regional Trial Court may enjoin the employees from striking.n dismissing the petition for certiorari and prohibition with preliminary injunction filed by petitioners, the Court of Appeals held that si

the employees of the SSS, are government employees, they are not allowed to strike, and may be enjoined by the Regional Trial Cowhich had jurisdiction over the SSS' complaint for damages, from continuing with their strike.Thus, the sequential questions to be resolved by the Court in deciding whether or not the Court of Appeals erred in finding that Regional Trial Court did not act without or in excess of jurisdiction when it took cognizance of the case and enjoined the strike arefollows:1. Do the employees of the SSS have the right to strike?2. Does the Regional Trial Court have jurisdiction to hear the case initiated by the SSS and to enjoin the strikers from continuing with strike and to order them to return to work?These shall be discussed and resolved seriatim

The 1987 Constitution, in the Article on Social Justice and Human Rights, provides that the State "shall guarantee the rights of all workerself-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance waw" [Art. XIII, Sec. 31].

By itself, this provision would seem to recognize the right of all workers and employees, including those in the public sector, to strike. the Constitution itself fails to expressly confirm this impression, for in the Sub-Article on the Civil Service Commission, it provides, adefining the scope of the civil service as "all branches, subdivisions, instrumentalities, and agencies of the Government, includgovernment-owned or controlled corporations with original charters," that "[t]he right to self-organization shall not be deniedgovernment employees" [Art. IX(B), Sec. 2(l) and (50)]. Parenthetically, the Bill of Rights also provides that "[tlhe right of the peoncluding those employed in the public and private sectors, to form unions, associations, or societies for purposes not contrary to law s

not abridged" [Art. III, Sec. 8]. Thus, while there is no question that the Constitution recognizes the right of government employeeorganize, it is silent as to whether such recognition also includes the right to strike.Resort to the intent of the framers of the organic law becomes helpful in understanding the meaning of these provisions. A reading ofproceedings of the Constitutional Commission that drafted the 1987 Constitution would show that in recognizing the right of governmemployees to organize, the commissioners intended to limit the right to the formation of unions or associations only, without includingright to strike.



Thus, Commissioner Eulogio R. Lerum, one of the sponsors of the provision that "[tlhe right to self-organization shall not be deniedgovernment employees" [Art. IX(B), Sec. 2(5)], in answer to the apprehensions expressed by Commissioner Ambrosio B. Padilla, VPresident of the Commission, explained:

MR. LERUM. I think what I will try to say will not take that long. When we proposed this amendment providing for organization of government employees, it does not mean that because they have the right to organize, they also haveright to strike. That is a different matter. We are only talking about organizing, uniting as a union. With regard to the rto strike, everyone will remember that in the Bill of Rights, there is a provision that the right to form associationssocieties whose purpose is not contrary to law shall not be abridged. Now then, if the purpose of the state is to prohthe strikes coming from employees exercising government functions, that could be done because the moment thaprohibited, then the union which will go on strike will be an illegal union. And that provision is carried in Republic Act 8

In Republic Act 875, workers, including those from the government-owned and controlled, are allowed to organize they are prohibited from striking. So, the fear of our honorable Vice- President is unfounded. It does not mean because we approve this resolution, it carries with it the right to strike. That is a different matter. As a matter of fact, subject is now being discussed in the Committee on Social Justice because we are trying to find a solution to this problWe know that this problem exist; that the moment we allow anybody in the government to strike, then what will hapif the members of the Armed Forces will go on strike? What will happen to those people trying to protect us? So thatmatter of discussion in the Committee on Social Justice. But, I repeat, the right to form an organization does not cawith it the right to strike. [Record of the Constitutional Commission, vol. 1, p. 569].

t will be recalled that the Industrial Peace Act (R.A. No. 875), which was repealed by the Labor Code (P.D. 442) in 1974, expressly bannstrikes by employees in the Government, including instrumentalities exercising governmental functions, but excluding entities entruswith proprietary functions:

.Sec. 11. Prohibition Against Strikes in the Government. — The terms and conditions of employment in the Governmincluding any political subdivision or instrumentality thereof, are governed by law and it is declared to be the policy of

Act that employees therein shall not strike for the purpose of securing changes or modification in their terms conditions of employment. Such employees may belong to any labor organization which does not impose the obligato strike or to join in strike:Provided, however , That this section shall apply only to employees employed in governmefunctions and not those employed in proprietary functions of the Government including but not limited to governmecorporations.

No similar provision is found in the Labor Code, although at one time it recognized the right of employees of government corporatestablished under the Corporation Code to organize and bargain collectively and those in the civil service to "form organizationspurposes not contrary to law" [Art. 244, before its amendment by B.P. Blg. 70 in 1980], in the same breath it provided that " [t]he termsconditions of employment of all government employees, including employees of government owned and controlled corporations, shalgoverned by the Civil Service Law, rules and regulations" [now Art. 276]. Understandably, the Labor Code is silent as to whether or government employees may strike, for such are excluded from its coverage [Ibid ]. But then the Civil Service Decree [P.D. No. 807], is equsilent on the matter.

On June 1, 1987, to implement the constitutional guarantee of the right of government employees to organize, the President issued No. 180 which provides guidelines for the exercise of the right to organize of government employees. In Section 14 thereof, it is providthat "[t]he Civil Service law and rules governing concerted activities and strikes in the government service shall be observed, subject to egislation that may be enacted by Congress." The President was apparently referring to Memorandum Circular No. 6, s. 1987 of the

Service Commission under date April 21, 1987 which, "prior to the enactment by Congress of applicable laws concerning strikegovernment employees ... enjoins under pain of administrative sanctions, all government officers and employees from staging stridemonstrations, mass leaves, walk-outs and other forms of mass action which will result in temporary stoppage or disruption of puservice." The air was thus cleared of the confusion. At present, in the absence of any legislation allowing government employees to strecognizing their right to do so, or regulating the exercise of the right, they are prohibited from striking, by express provisionMemorandum Circular No. 6 and as implied in E.O. No. 180. [At this juncture, it must be stated that the validity of Memorandum CircNo. 6 is not at issue].But are employees of the SSS covered by the prohibition against strikes?The Court is of the considered view that they are. Considering that under the 1987 Constitution "[t]he civil service embraces all branch

subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with origcharters" [Art. IX(B), Sec. .2(l) see also Sec. 1 of E.O. No. 180 where the employees in the civil service are denominated as "governmemployees"] and that the SSS is one such government-controlled corporation with an original charter, having been created under R.A. 1161, its employees are part of the civil service [NASECO v. NLRC, G.R. Nos. 69870 & 70295, November 24,1988] and are covered byCivil Service Commission's memorandum prohibiting strikes. This being the case, the strike staged by the employees of the SSS was illegaThe statement of the Court in Alliance of Government Workers v. Minister of Labor and Employment [G.R. No. 60403, August 3, 1:983, SCRA 11 is relevant as it furnishes the rationale for distinguishing between workers in the private sector and government employees wregard to the right to strike:

The general rule in the past and up to the present is that 'the terms and conditions of employment in the Governmeincluding any political subdivision or instrumentality thereof are governed by law" (Section 11, the Industrial Peace R.A. No. 875, as amended and Article 277, the Labor Code, P.D. No. 442, as amended). Since the terms and condition

government employment are fixed by law, government workers cannot use the same weapons employed by workers in

private sector to secure concessions from their employers. The principle behind labor unionism in private industry is t



industrial peace cannot be secured through compulsion by law. Relations between private employers and their employrest on an essentially voluntary basis. Subject to the minimum requirements of wage laws and other labor and wellegislation, the terms and conditions of employment in the unionized private sector are settled through the procescollective bargaining. In government employment, however, it is the legislature and, where properly given delegapower, the administrative heads of government which fix the terms and conditions of employment. And this is effecthrough statutes or administrative circulars, rules, and regulations, not through collective bargaining agreements. [A13; Emphasis supplied].

Apropos is the observation of the Acting Commissioner of Civil Service, in his position paper submitted to the 1971 ConstitutiConvention, and quoted with approval by the Court in Alliance, to wit:

It is the stand, therefore, of this Commission that by reason of the nature of the public employer and the pecu

character of the public service, it must necessarily regard the right to strike given to unions in private industry as applying to public employees and civil service employees. It has been stated that the Government, in contrast to private employer, protects the interest of all people in the public service, and that accordingly, such conflicting interas are present in private labor relations could not exist in the relations between government and those whom temploy. [At pp. 16-17; also quoted in National Housing Corporation v. Juco, G.R. No. 64313, January 17,1985,134 S172,178-179].

E.O. No. 180, which provides guidelines for the exercise of the right to organize of government employees, while clinging to the saphilosophy, has, however, relaxed the rule to allow negotiation where the terms and conditions of employment involved are not amthose fixed by law. Thus:

.SECTION 13. Terms and conditions of employment or improvements thereof, except those that are fixed by law, maythe subject of negotiations between duly recognized employees' organizations and appropriate government authoritie

The same executive order has also provided for the general mechanism for the settlement of labor disputes in the public sector to wit:.SECTION 16. The Civil Service and labor laws and procedures, whenever applicable, shall be followed in the resolutio

complaints, grievances and cases involving government employees. In case any dispute remains unresolved aexhausting all the available remedies under existing laws and procedures, the parties may jointly refer the dispute to [Public Sector Labor- Management] Council for appropriate action.

Government employees may, therefore, through their unions or associations, either petition the Congress for the betterment of the teand conditions of employment which are within the ambit of legislation or negotiate with the appropriate government agencies for mprovement of those which are not fixed by law. If there be any unresolved grievances, the dispute may be referred to the Public Sec

Labor - Management Council for appropriate action. But employees in the civil service may not resort to strikes, walk-outs and ottemporary work stoppages, like workers in the private sector, to pressure the Govemment to accede to their demands. As now provunder Sec. 4, Rule III of the Rules and Regulations to Govern the Exercise of the Right of Government- Employees to Self- Organizatwhich took effect after the instant dispute arose, "[t]he terms and conditions of employment in the government, including any politsubdivision or instrumentality thereof and government- owned and controlled corporations with original charters are governed by law employees therein shall not strike for the purpose of securing changes thereof."

IThe strike staged by the employees of the SSS belonging to petitioner union being prohibited by law, an injunction may be issued to restt.t is futile for the petitioners to assert that the subject labor dispute falls within the exclusive jurisdiction of the NLRC and, hence,

Regional Trial Court had no jurisdiction to issue a writ of injunction enjoining the continuance of the strike. The Labor Code itself provthat terms and conditions of employment of government employees shall be governed by the Civil Service Law, rules and regulations [276]. More importantly, E.O. No. 180 vests the Public Sector Labor - Management Council with jurisdiction over unresolved labor dispunvolving government employees [Sec. 16]. Clearly, the NLRC has no jurisdiction over the dispute.

This being the case, the Regional Trial Court was not precluded, in the exercise of its general jurisdiction under B.P. Blg. 129, as amendfrom assuming jurisdiction over the SSS's complaint for damages and issuing the injunctive writ prayed for therein. Unlike the NLRC, Public Sector Labor - Management Council has not been granted by law authority to issue writs of injunction in labor disputes withinjurisdiction. Thus, since it is the Council, and not the NLRC, that has jurisdiction over the instant labor dispute, resort to the general coof law for the issuance of a writ of injunction to enjoin the strike is appropriate.

Neither could the court a quo be accused of imprudence or overzealousness, for in fact it had proceeded with caution. Thus, after issuinwrit of injunction enjoining the continuance of the strike to prevent any further disruption of public service, the respondent judge, in same order, admonished the parties to refer the unresolved controversies emanating from their employer- employee relationship to Public Sector Labor - Management Council for appropriate action [Rollo, p. 86].IIn their "Petition/Application for Preliminary and Mandatory Injunction," and reiterated in their reply and supplemental reply, petition

allege that the SSS unlawfully withheld bonuses and benefits due the individual petitioners and they pray that the Court issue a wripreliminary prohibitive and mandatory injunction to restrain the SSS and its agents from withholding payment thereof and to compel SSS to pay them. In their supplemental reply, petitioners annexed an order of the Civil Service Commission, dated May 5, 1989, which ruthat the officers of the SSSEA who are not preventively suspended and who are reporting for work pending the resolution of administrative cases against them are entitled to their salaries, year-end bonuses and other fringe benefits and affirmed the previous oof the Merit Systems Promotion Board.



The matter being extraneous to the issues elevated to this Court, it is Our view that petitioners' remedy is not to petition this Court to i san injunction, but to cause the execution of the aforesaid order, if it has already become final.WHEREFORE, no reversible error having been committed by the Court of Appeals, the instant petition for review is hereby DENIED anddecision of the appellate court dated March 9, 1988 in CA-G.R. SP No. 13192 is AFFIRMED. Petitioners' "Petition/Application for Preliminand Mandatory Injunction" dated December 13,1988 is DENIED.SO ORDERED.G.R. No. 92403 April 22, 1992VICTOR A. AQUINO, petitiovs.CIVIL SERVICE COMMISSION and LEONARDA D. DE LA PAZ, respondents.

MEDIALDEA, J.: This petition for certiorari with prayer for the issuance of a restraining order seeks to nullify the resolutions issued by the respondent Service Commission, namely: (1) Resolution No. 88-820 dated November 7, 1988 reversing the decision of the Merit Systems ProtecBoard dated February 5, 1988 which sustained the decision of the Secretary of Education, Culture and Sports dated May 4, 1987 upholdthe appointment of Mr. Victor A. Aquino as Supply Officer I in the DECS, Division of San Pablo City; and (2) Resolution No. 90-224 daFebruary 27, 1990 denying the motion for reconsideration with prayer for issuance of temporary restraining order for lack of merit.The antecedent facts are as follows:Petitioner Victor A. Aquino, then holding the position of Clerk II, Division of City Schools of San Pablo City, was designated on July 20, 1as Officer-in-Charge of the Division Supply Office by the DECS Regional Director Saturnino R. Magturo (Annex "H", petition, p. 55, Rollo

view of the retirement of the Supply Officer I, Mr. Jose I. Aviquivil.Prior to such designation, or from the period February 16, 1984 to June 16, 1984, petitioner was designated as Property Inspector andCharge of the Supply Office performing the duties and responsibilities of the Supply Officer I (p. 55, Rollo).

Two (2) years thereafter, or on September 19, 1986, the Division Superintendent of City Schools of San Pablo City, Milagros Tagle, issuepromotional appointment to private respondent Leonarda D. de la Paz as Supply Officer I in the DECS Division of San Pablo City. assumed and performed the duties and functions of the position and received the compensation and benefits therefor.At the time of her appointment, private respondent was then holding the position of Clerk II, Division of City Schools of San Pablo City. FAugust 25, 1976 to September 1983, she was designated as Assistant to the Supply Officer (DECS decision, p. 31, Rollo). The Civil SerRegional Office IV approved her appointment as permanent "provided that there is no pending administrative case against the appoinno pending protest against the appointment, nor any decision by competent authority that will adversely affect the approval of (tappointment" (Annex "A", Comment of CSC, p 164, Rollo).One (1) month after, or on October 20, 1986 petitioner filed a protest with the DECS Secretary questioning the qualification competence of private respondent for the position of Supply Officer I.n a decision dated May 4, 1987, DECS Secretary Lourdes R. Quisumbing sustained the protest of petitioner and revoked the appointmen

private respondent as Supply Officer I thus:

From the foregoing comparative statement of the qualifications of Mr. Aquino and Mrs. de la Paz, apparently the formhas a decided advantage over the latter in terms of education, experience and training. Further examination of comparative statement shows that Mrs. de la Paz has had no relevant in-service training course attended and compleAccordingly, therefore, Mr. Aquino is preferred to Mrs. de la Paz for appointment as Supply Officer I.

xxx xxx xxxBased on all the foregoing and as records further show that Mr. Aquino is competent and qualified to hold the subposition and possesses the eligibility requirement, this Office finds the instant protest meritorious and hereby rules anrules that Mr. Aquino be appointed Supply Officer I in place of Mrs. de la Paz, whose appointment thereto is deemrevoked. (p. Annex "C", pp. 30-31, Rollo)

Private respondent then filed her petition for reconsideration of the aforequoted DECS decision but the same was denied by SecretQuisumbing in a Resolution dated August 11, 1967.On the bases of the aforementioned rulings of the DECS Secretary, petitioner Aquino was issued a permanent appointment dated Aug11, 1987 as Supply Officer I by the DECS Regional Director Pedro San Vicente effective October 26, 1987. On the date of effectivity of

appointment, petitioner assumed the duties and functions of the position. The said appointment was approved by the Civil Service RegiOffice IV on October 27, 1987.For her part, private respondent de la Paz filed on October 16, 1987 a notice of appeal with motion to maintain status quo to the MSystems Protection Board (MSPB) which, on February 5, 1988, rendered a decision upholding the appointment of Aquino as Supply Offi(Annex "D", petition pp. 33-35, Rollo).From the decision of the MSPB, private respondent appealed to public respondent Civil Service Commission (CSC).n Resolution No, 88-820 dated November 7, 1988, public respondent CSC found the appeal of private respondent meritorious, t

revoking the appointment of petitioner Aquino and restoring private respondent de la Paz to her position as Supply Officer I, DECS, Diviof San Pablo City under her previously approved appointment (Annex "B", petition, pp. 26-29, Rollo).From said decision, petitioner filed a motion for reconsideration with prayer for issuance of a temporary restraining order. Finding no mto the motion for reconsideration filed by petitioner, public respondent CSC issued Resolution No. 90-224 dated February 27, 1990 denysaid motion (Annex "A", petition, pp. 21- 24, Rollo).

Hence, this petition seeking the reversal of public respondent Commission's action on petitioner's appointment.



Two (2) interrelated issues on the extent of authority of the Civil Service Commission to pass upon the contested appointments were raby petitioner which could be simplified into whether or not public respondent Civil Service Commission committed grave abusediscretion in revoking the appointment of petitioner Victor A. Aquino as Supply Officer I in the DECS Division of San Pablo City as it foprivate respondent Leonarda de la Paz better qualified.n assailing the two (2) CSC Resolutions revoking his appointment, petitioner invokes the ruling of this Court in the case of Santiago v .

Service Commission, G.R. No. 81467, October 27, 1989, 178 SCRA 733 and Galura v .Civil Service Commission, G.R. 85812, June 1, 1989Banc resolution) that the Civil Service Commission has no authority to revoke an appointment on the ground that another person is mqualified for a particular position for that would have constituted an encroachment on the discretion vested solely in the appoinauthority. The Civil Service Commission cannot exceed its power by substituting its will for that of the appointing authority.n support of petitioner's cause, the Solicitor General stresses the wide latitude of discretion given to the appointing authority in

selection and appointment of qualified persons to vacant positions in the civil service which was emphasized by the Court as rationalethe rule laid down in Luego v . Civil Service Commission, G.R. No. 69137, August 5, 1986, 143 SCRA 327, Central Bank v . CSC , G.R. No. 80456, April 10, 1989, 171 SCRA 744, Patagoc v . CSC , G.R. No. 90229, May 14, 1990, 185 SCRA 411, that public respondent CSC, not being"appointing power" in contemplation of law, has no authority to revoke an appointment on the ground that another person is mqualified for a particular position and that the Commission has no authority to direct the appointment of a substitute of its choice.We have consistently applied the above doctrine in many cases with similar factual circumstances, but we see no compelling reasoapply the same in the instant case. In the cases cited above, We ruled that the Civil Service Commission has no authority to revokeappointment simply because it (CSC) believed that another person is better qualified than the appointee for it would constituteencroachment on the discretion solely vested on the appointing authority. The situation is different as in the instant case, where the Service Commission revokedthe appointment of the successful protestant, petitioner herein, principally because the right to securittenure of the prior appointee, private respondent herein, to the contested position had already attached (see CSC decision, pp.29, Rollo). It must be noted that public respondent CSC did not direct the appointment of a substitute of its choice. It merely restored appointment of private respondent who was first appointed to the contested position.

The records show that private respondent was issued a permanent appointment on September 19, 1986 as Supply Officer I in the DDivision of San Pablo City effective September 30, 1986. On the basis of the of said appointment which was approved by the Civil SerRegional Office No. IV, private respondent assumed and performed the duties and functions of the position as Supply Officer I and recethe compensation and benefits of the said position in accordance with the mandate of Section 9 par.(h) of the Civil Service Law (P.D. 807amended). In consonance with the doctrine laid down in Villanueva v . Balallo, G.R. No. L-17745, October 31, 1963, 9 SCRA 407, thaappointment is complete when the last act required of the appointing power has been performed, but later qualified in Favis v . Rupi

G.R. No. L-22823, May 19, 1966, 17 SCRA 190, that the acts of the head of a department or office making the appointment and Commissioner of Civil Service acting together, though not concurrently, but consecutively, are necessary to make an appointmcomplete, the permanent appointment extended to private respondent, under the circumstances of the case, is deemed complete. As sushe is entitled to the protection of the law against unjust removal.The conclusion of respondent Commission in the questioned decision that private respondent is more qualified than petitioner mesupports the validity of the restoration of private respondent to her previously approved appointment considering that she meets

prescribed qualification standards required of the position of Supply Officer I and the appropriate civil service eligibility, to wit:EDUCATION: Bachelor's degree with training in Supply ManagemEXPERIENCE: None requELIGIBILITY: Supply Officer; Career Service (Professional)

t is well-settled that once an appointment is issued and the moment the appointee assumes a position in the civil service undecompleted appointment, he acquires a legal, not merely equitable right (to the position), which is protected not only by statute, but alsthe Constitution, and cannot be taken away from him either by revocation of the appointment, or by removal, except for cause, and wprevious notice and hearing (Mitra v. Subido, G.R No. L-21691, September 15, 1967, 21 SCRA 127.There is also authority for the rule that when the appointing power has once acted and the appointee has acceptedthe office and dowhat is required of him upon its acceptance, his title to the office becomes complete, and he can then be removed only in the regular (Mechem, Law of Public Offices and Officers, Sec. 461, p. 294, citing Marbury v. Madison, 1 Cranch (U.S.) 137). The appointing power not effect his removal indirectly by rescinding or revoking his appointment after it is complete.There is thus reasonable ground for the rule that the moment the discretionary power of appointment has been exercised and

appointee assumed the duties and functions of the position, the said appointment cannot be revoked by the appointing authority on ground merely that the protestant is more qualified than the first appointee, subject however to the condition that the first appoinshould possess the minimum qualifications required by law. Otherwise, the security of tenure guaranteed by Article IX-B, Section 2 parof the 1987 Constitution would be rendered meaningless if the appointing authority is allowed to flip-flop in exercising its discretionpower of appointment.While a protest is a made of action that may be availed of by the aggrieved party to contest the appointment made, the protest must"for cause" or predicated on those grounds provided for under Section 19 par. (6) of the Civil Service Law (P.D. 807), namely: (1) that appointee is not qualified; (2) that the appointee is not the next-in-rank; and (3) in case of appointment by transfer, reinstatement, ooriginal appointment, that the protestant is not satisfied with the written special reason or reasons given by the appointing authority.We have defined the concept of "for cause" in connection with removal of public officers in the case of De los Santos v . Mallare, G.R. N3881, August 31, 1950, 87 Phil. 289, as follows: "It means for reasons which the law and sound public policy recognized as sufficient warfor removal, that is legal cause, and not merely causes which the appointing power in the exercise of discretion may deem sufficient.

mplied that officers may not be removed at the mere will of those vested with the power of removal, or without any cause. Moreover,



cause must relate to and affect the administration of the office, and must be restricted to something of a substantial nature direaffecting the rights and interests of the public."The ground relied upon by petitioner in his protest that he is more qualified than private respondent in terms of education, experience training does not fall within the meaning of "for cause" contemplated by Article IX-B, Section 2 par. (3) of the 1987 Constitution whwould warrant the revocation, if not removal, of the appointment of private respondent. Neither does it fall under the grounds of appcontemplated under Section 19 par. (6) of the Civil Service Law (P.D. 807). Therefore, the protest of petitioner did not adversely affectapproval of the appointment of private respondent.Even on the assumption that the revocation of private respondent's appointment was validly exercised by DECS Secretary Quisumbing, the appointment extended to petitioner was tainted with irregularity as it was issued before the finality of the decision on the proteviolation of CSC Resolution No. 83-343 which prohibits the issuance of an appointment to protestant (petitioner) if the protest case is

yet finally resolved, since there is no vacancy in the position pending resolution of the protest case. There can be no appointment to a nvacant position. The incumbent must first be legally removed or his appointment validly terminated (Costin v. Quimbo, G.R. No. L-32January 27, 1983, 120 SCRA 159). An appointment to an office which is not vacant is null and void ab initio (Morata v. Court of Appeals, No. L-18975, May 25, 1964, 11 SCRA 42).CSC Resolution No. 83-343 provides, thus:

An appointment though contested shall take effect immediately upon issuance if the appointee assumes the dut ies ofposition and (the) appointee is entitled to receive the salary attached to the position. Likewise such appointment sbecome ineffective in case the protest is finally resolved in favor of the protestant, in which case the protestee shalreverted to his former position. (p. 223,Rollo)

Records reveal that the decision of the DECS Secretary revoking the appointment of private respondent was rendered on May 4, 1987 the motion for reconsideration filed by private respondent was denied on August 11, 1987. The appointment issued to petitioner as SupOfficer I was dated August 11, 1987 and he assumed the position on October 26, 1987 (date of effectivity of his appointment) as reporby the Schools Division Superintendent of San Pablo City (pp. 77-78, Rollo). From all indications, the appointment of petitioner dated Au

11, 1987 was issued with undue haste before the finality of the denial of the motion for reconsideration.While it is true that the appointing authority has a wide latitude of discretion in making his choice in the selection and appointmenqualified persons to vacant positions in the civil service, we cannot, however, give a stamp of approval to such a procedural irregularitextending appointments, as in the instant case, to the prejudice of the right to security of tenure of the incumbent to the position.ACCORDINGLY, the petition is DENIED. The decision dated May 4, 1987 and the resolution dated August 11, 1987 of the respondent CService Commission are hereby AFFIRMED. The Secretary of the Department of Education, Culture and Sports is hereby directed to restprivate respondent Leonarda de la Paz to her previously approved appointment as Supply Officer I, DECS, Division of San Pablo City.SO ORDERED.Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero and Nocon, JJ., concur. Bellosillo, J., took no part

G.R. No. 100947 May 31, 1993

PNOC ENERGY DEVELOPMENT CORPORATION and MARCELINO TONGCO, petitionvs.NATIONAL LABOR RELATIONS COMMISSION and MANUEL S. PINEDA, respondents.Alikpala, Gomez & Associates Law Office for petitioners.

Filomeno A. Zieta for private respondent.

NARVASA, C.J.: The applicability to private respondent Manuel S. Pineda of Section 66 of the Election Code is what is chiefly involved in the case at bar. section reads as follows:

Sec. 66. Candidates holding appointive office or position.— Any person holding a public appointive office or positincluding active members of the Armed Forces of the Philippines, and officers and employees in government-ownecontrolled corporations, shall be considered ipso facto resigned from his office upon the fi ling of his certificatecandidacy.

Manuel S. Pineda was employed with the Philippine National Oil Co.-Energy Development Corp. (PNOC-EDC), as subsidiary of the PhilippNational Oil Co., from September 17, 1981, when he was hired as clerk, to January 26, 1989, when his employment was terminated. events leading to his dismissal from his job are not disputed.n November, 1987, while holding the position of Geothermal Construction Secretary, Engineering and Construction Department

Tongonan Geothermal Project, Ormoc City, Pineda decided to run for councilor of the Municipality of Kananga, Leyte, in the local electscheduled in January, 1988, and filed the corresponding certificate of candidacy for the position. Objection to Pineda's being a candidwhile retaining his job in the PNOC-EDC was shortly thereafter registered by Mayor Arturo Cornejos of Kananga, Leyte. The macommunicated with the PNOC-EDC — thru Engr. Ernesto Patanao, Resident Manager, Tongonan Geothermal Project — to express the vthat Pineda could not actively participate in politics unless he officially resigned from PNOC-EDC.

1 Nothing seems to have resulted from

protest.The local elections in Leyte, scheduled for January, 1988, were reset to and held on February 1, 1988. Pineda was among the offcandidates voted for, and eventually proclaimed elected to, the office of councilor. Some vacillation appears to have been evinced

Pineda at about this time. On February 8, 1988, he wrote to the COMELEC Chairman, expressing his desire to withdraw from the polit







even if they do not fall under the Civil Service Law but under the Labor Code. In other words, Section 66 constitutes just causetermination of employment in addition to those set forth in the Labor Code, as amended.The conclusions here reached make unnecessary discussion and resolution of the other issues raised in this case.WHEREFORE, the petition is GRANTED; the decision of public respondent National Labor Relations Commission dated April 24, 1991 andResolution dated June 21, 1991 are NULLIFIED AND SET ASIDE; and the complaint of Manuel S. Pineda is DISMISSED. No costs.SO ORDERED.Padilla, Regalado and Nocon, JJ. , concur .G.R. No. 96298 May 14, 1991RENATO M. LAPINID, petitiovs.

CIVIL SERVICE COMMISSION, PHILIPPINE PORTS AUTHORITY and JUANITO JUNSAY, respondents.Brillantes, Nachura, Navarro & Arcilla Law Offices for petitioner.

Adolpho M. Guerzon for J. Junsay, Jr.

Evalyn L Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for Civil Service Commission.

CRUZ, J.:p The issue raised in this case has been categorically resolved in a long line of cases that should have since guided the policies and actionthe respondent Civil Service Commission. Disregard of our consistent ruling on this matter has needlessly imposed on the valuable timthe Court and indeed borders on disrespect for the highest tribunal. We state at the outset that this conduct can no longercountenanced.Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor at the Manternational Container Terminal on October 1, 1988. This appointment was protested on December 15, 1988, by private respond

Juanito Junsay, who reiterated his earlier representations with the Appeals Board of the PPA on May 9, 1988, for a review of the decisio

the Placement Committee dated May 3, 1988. He contended that he should be designated terminal supervisor, or to any other comparposition, in view of his preferential right thereto. On June 26, 1989, complaining that the PPA had not acted on his protest, Junsay wenthe Civil Service Commission and challenged Lapinid's appointment on the same grounds he had earlier raised before the PPA. resolution dated February 14, 1990, the Commission disposed as follows:

After a careful review of the records of the case, the Commission finds the appeal meritorious. In the comparaevaluation sheets, the parties were evaluated according to the following criteria, namely: eligibility; education; wexperience; productivity/performance/ attendance; integrity; initiative/leadership; and physcharacteristics/personality traits. The results of the evaluation are as follows:

JUNSAY, Juanito — 79.5VILLEGAS, Benjamin — 79LAPINID, Renato — 75DULFO, Antonio — 78

MARIANO, Eleuterio — 79FLORES, Nestor — 80DE GUZMAN, Alfonso — 80VER, Cesar — 80

It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have an edge over that of protestees Lapinid (75) Dulfo (78).Foregoing premises considered, it is directed that Appellants Juanito Junsay and Benjamin Villegas be appointedTerminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively who may be consideredappointment to any position commensurate and suitable to their qualifications, and that the Commission be notwithin ten (10) days of the implementation hereof.SO ORDERED.

Upon learning of the said resolution, Lapinid, 7who claimed he had not been informed of the appeal and had not been heard thereon, fa motion for reconsideration on March 19, 1990. This was denied on May 25, 1990. The Philippine Ports Authority also filed its own mot

for reconsideration on June 19, 1990, which was denied on August 17, 1990. A second motion for reconsideration filed on September1990, based on the re-appreciation of Lapinid's rating from 75% to 84%, was also denied on October 19, 1990.When the petitioner came to this Court on December 13, 1990, we resolved to require Comments from the respondents and in meantime issued a temporary restraining order. The Solicitor General took a stand against the Civil Service Commission which, at suggestion, was allowed to file its own Comment. The petitioner filed a Reply. The private respondent's Comment was dispensed with wt was not filed within the prescribed period.

We see no reason to deviate from our consistent ruling on the issue before us.n Luego v . Civil Service Commission,

1 this Court declared:

The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacemby the latter?xxx xxx xxx



Appointment is an essentially discretionary power and must be performed by the officer in which it is vested accordinhis best lights, the only condition being that the appointee should possess the qualifications required by law. If he dothen the appointment cannot be faulted on the ground that there are others better qualified who should have bpreferred. This is a political question involving considerations of wisdom which only the appointing authority can decidxxx xxx xxxSignificantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent wqualified for the position in controversy. That recognition alone rendered it functus officio in the case and preventefrom acting further thereon except to affirm the validity of the petitioner's appointment. To be sure, it had no authoritrevoke the said appointment simply because it believed that the private respondent was better qualified for that wohave constituted an encroachment on the discretion vested solely in the city mayor.

The same ruling has been affirmed, in practically the same language as Luego, in Central Bank v . Civil Service Commission, 171 S744; Santiago v . Civil Service Commission, 178 SCRA 733; Pintor v . Tan, G.R. No. 84022 and G.R. No. 85804, March 9, 1989, En Banc, MinResolution; Galura v . Civil Service Commission, G.R. No. 85812, June 1, 1989, En Banc, Minute Resolution; Zulueta v . Mamangun, G.R.85941, June 15, 1989, En Banc, Minute Resolution; Remigio v . Chairman, Civil Service Commission, G.R. No. 86324, July 6, 1989, En B

Minute Resolution; Aurora Macacua v . Civil Service Commission, G.R. No. 91520, July 31, 1990, En Banc, Minute Resolution; Abdulwa

A. Bayao v . Civil Service Commission, G.R. No. 92388, September 11, 1990, En Banc, Minute Resolution; Orbos v . Civil Service Commiss

G.R. No. 92561, September 12, 1990; Alicia D. Tagaro v .The Hon. Civil Service Commission, et al ., G.R. No. 90477, September 13, 1990Banc, Minute Resolution;Elenito Lim v . Civil Service Commission, et al ., G.R. No. 87145, October 11, 1990, En Banc, MinResolution;Teologo v . Civil Service Commission, G.R. No. 92103, November 8, 1990; Simpao v . Civil Service Commission, G.R. No. 85November 15, 1990.Only recently, in Gaspar v . Court of Appeals

2 this Court said:

The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review the appointmin the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other l

requirements have been otherwise satisfied, it has no choice but to attest to the appointment. Luego finally pointsthat the recognition by the Commission that both the appointee and the protestant are qualified for the positiocontroversy renders it functus officio in the case and prevents it from acting further thereon except to affirm the valiof the former's appointment; it has no authority to revoke the appointment simply because it considers anotemployee to be better qualified for that would constitute an encroachment on the discretion vested in the appoinauthority.xxx xxx xxxThe determination of who among several candidates for a vacant position has the best qualifications is vested in sound discretion of the Department Head or appointing authority and not in the Civil Service Commission. Every partic

job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of acadeunits in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, tespirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests, of the service. Given the dema

of a certain job, who can do it best should be left to the Head of the Office concerned provided the legal requirementsthe office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the Head of Office in regard.

t is therefore incomprehensible to the Court why, despite these definitive pronouncements, the Civil Service Commission has seen fignore, if not defy, the clear mandate of the Court.

We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of appointment except oveown personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualificatishould be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment becaubelieves another person is better qualified and much less can it direct the appointment of its own choice.Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be subject of mandamus, the selection itself of the appointee—taking into account the totality of his qualifications, including those abstqualities that define his personality—is the prerogative of the appointing authority. This is a matter addressed only to the discretion of

appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution andapplicable laws.Commenting on the limits of the powers of the public respondent, Luego declared:

It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decbecause it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therthat the Commission shall have inter alia the power to:

9(h) Approve all appointments, whether original or promotional , to positions in the civil service , exthose presidential appointees, members of the Armed Forces of the Philippines, police forces, firemand jailguards, and disapprove those where the appointees do not possess appropriate eligibility

required qualifications. (Emphasis supplied)However, a full reading of the provision, especially of the underscored parts, will make it clear that all the Commissioactually allowed to do is check whether or not the appointee possesses the appropriate civil service eligibility or

required qualifications. If he does, his appointment is approved; if not, it is disapproved. No other criterion is permitte



law to be employed by the Commission when it acts on—or as the Decree says, "approves" or "disapproves'—appointment made by the proper authorities.

The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for the Civil Service Commission nounderstand them. The bench does; the bar does; and we see no reason why the Civil Service Commission does not. If it will not, then than entirely different matter and shall be treated accordingly.We note with stern disapproval that the Civil Service Commission has once again directed the appointment of its own choice in the casbar. We must therefore make the following injunctions which the Commission must note well and follow strictly.Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to desist from disregarding the doctrine announn Luego v . Civil Service Commission and the subsequent decisions reiterating such ruling. Up to this point, the Court has leniently regar

the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence. But

are no longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by the Civil Service Commission after date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely, in view especiallythe status of the contemner.While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary reminder, that ever y departmand office in the Republic must know its place in the scheme of the Constitution. The Civil Service Commission should recognize that its are subject to reversal by this Court, which expects full compliance with its decisions even if the Commission may not agree with them.The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its peril.WHEREFORE, the petition is GRANTED. The Resolutions of the respondent Civil Service Commission dated February 14, 1990, May 25, 1August 17, 1990, and October 19, 1990, are REVERSED and SET ASIDE. The temporary restraining order dated December 13, 1990, is mPERMANENT. No costs.SO ORDERED.Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento Griño-Aquino, Medial

Regalado and Davide, Jr., JJ., concur.

G.R. No. L-3881 August 31, 1950EDUARDO DE LOS SANTOS, petitiovs.GIL R. MALLARE, LUIS P. TORRES, in his capacity as City Mayor, PANTALEON PIMENTEL, in his capacity as City Treasurer and RAFAEL USn his capacity as City Auditor, respondents.

Francisco S. Reyes for petitio

Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto Luciano for responde

Jose P. Laurel and Abelardo Subido as amici curiae. TUASON, J.:This is an original action of quo warranto questioning the legality of the appointment of respondent Gil R. Mallare to the office of engineer for the City of Baguio which the petitioner occupied and claims to be still occupying. The real issue however is the legality of petitioner's removal from the same office which would be the effect of Mallare's appointment if the same be allowed to stand. It is

petitioner's contention that under the Constitution he can not be removed against his will and without cause. The complaint against other respondents has to do merely with their recognition of Mallare as the lawful holder of the disputed office and is entirely dependupon the result of the basic action against the last-mentioned respondent (Mallare).Stripped of details unessential to the solution of the case, the facts are that Eduardo de los Santos, the petitioner, was appointed Engineer of Baguio on July 16, 1946, by the President, appointment which was confirmed by the Commission on Appointments on Auguand on the 23rd of that month, he qualified for and began to exercise the duties and functions of the position. On June 1, 1950, GMallare was extended an ad interim appointment by the President to the same position, after which, on June 3, the Undersecretary of Department of Public Works and Communications directed Santos to report to the Bureau of Public Works for another assignment. Sanrefused to vacate the office, and when the City Mayor and the other officials named as Mallare's co-defendants ignored him and pMallare the salary corresponding to the position, he commenced these proceedings.The petitioner rests his case on Article XII of the Constitution, section 4 of which reads: "No officer or employee in the Civil Service sharemoved or suspended except for cause as provided by law."t is admitted in respondents' answer that the City Engineer of Baguio "belongs to the unclassified service." And this Court, in an exhaus

opinion by Mr. Justice Montemayor in the case of Lacson vs. Romero, 47 Off. Gaz., 1778, involving the office of provincial fiscal, ruled officers or employees in the unclassified as well as those in the classified service are protected by the above-cited provision of the orgaw. But there is this difference between the Lacson case and the case at bar: Section 2545 of the Revised Administrative Code, which f

under Chapter 61 entitled "City of Baguio," authorizes the Governor General (now the President) to remove at pleasure any of the offienumerated therein, one of whom is the city engineer. The first question that presents itself is, is this provision still in force?Section 2 of Article XVI of the Constitution declares that "All laws of the Philippine Islands shall continue in force until the inauguratiothe Commonwealth of the Philippines; thereafter, such laws shall remain operative, unless inconsistent with this Constitution, uamended, altered, modified, or repealed by the Congress of the Philippines, . . . ."t seems plain beyond doubt that the provision of section 2545 of the Revised Administrative Code, he (Governor-General now Presid

may remove at pleasure any of the said appointive officers," is incompatible with the constitutional inhibition that "No officer or emplon the Civil Service shall be removed or suspended except for cause as provided by law." The two provisions are mutually repugnant

absolutely irreconcilable. One in express terms permits what the other in similar terms prohibits.





that was far more radical and thorough than that in the United States. The Governor-General after William Taft adopted the poof appointing Filipinos in the government regardless of their party affiliation. As the result of these the personnel of the Service had gradually come to be one of which the people of the United States could feel justly proud.Necessity for Constitutional provision. — The inclusion in the constitution of provisions regarding the "merit system" is a necesof modern times. As its establishment secures good government the citizens have a right to accept its guarantee as a permaninstitution.Separation, suspension, demotions and transfers. — The "merit system" will be ineffective if no safeguards are placed around separation and removal of public employees. The Committee's report requires that removals shall be made only for "causes anthe manner provided by law. This means that there should be bona fide reasons and action maybe taken only after the emploshall have been given a fair hearing. This affords the public employees reasonable security of tenure. (II Aruego's Framing of

Constitution, 886, 887, 890.)As has been seen, three specified classes of positions — policy-determining, primarily confidential and highly technical — are excluded fthe merit system and dismissal at pleasure of officers and employees appointed therein is allowed by the Constitution. These positnvolved the highest degree of confidence, or are closely bound out with and dependent on other positions to which they are subordina

or are temporary in nature. It may truly be said that the good of the service itself demands that appointments coming under this categdeterminable at the will of the officer that makes them.The office of city engineer is neither primarily confidential, policy-determining, nor highly technical.Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position that is primaconfidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but primarily clntimacy which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trus

confidential matters of state. Nor is the position of city engineer policy-determining. A city engineer does not formulate a method of acfor the government or any its subdivisions. His job is to execute policy, not to make it. With specific reference to the City EngineeBaguio, his powers and duties are carefully laid down for him be section 2557 of the Revised Administrative Code and are essent

ministerial in character. Finally, the position of city engineer is technical but not highly so. A city engineer is not required nor is he suppoto possess a technical skill or training in the supreme or superior degree, which is the sense in which "highly technical" is, we beliemployed in the Constitution. There are hundreds of technical men in the classified civil service whose technical competence is not lowthan that of a city engineer. As a matter of fact, the duties of a city engineer are eminently administrative in character and could very wbe discharged by non-technical men possessing executive ability.Section 10 of Article VIII of the Constitution requires that "All cases involving the constitutionality of a treaty or law shall be heard decided by the Supreme Court in banc," and warns that "no treaty or law may be declared unconstitutional without the concurrenctwo-thirds of all the members of the Court." The question arises as to whether this judgment operates as invalidation of section 2545 ofRevised Administrative Code or a part of it so as to need at least eight votes to make effective. The answer should be in negative.We are not declaring any part of section 2545 of the Revised Administrative Code unconstitutional. What we declare is that the particprovision thereof which gave the Chief Executive power to remove officers at pleasure has been repealed by the Constitution and ceasebe operative from the time that instrument went into effect. Unconstitutionally, as we understand it, denotes life and vigor,

unconstitutional legislation presupposes posteriority in point of time to the Constitution. It is a statute that "attempts to validate egalize a course of conduct the effect of which the Constitution specifically forbids (State ex-rel. Mack vs. Guckenberger, 139 Ohio St., 39 NE. [2d], 840.) A law that has been repealed is as good as if it had never been enacted, and can not, in the nature of things, contravor pretend to contravene constitutional inhibition. So, unlike legislation that is passed in defiance of the Constitution, assertive menacing, the questioned part of section 2545 of the Revised Administrative Code does not need a positive declaration of nullity by court to put it out of the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute book by Constitution itself by express mandate before this petitioner was appointed.ncidentally, the last discussion answers and disposes of the proposition that in accepting appointment under section 2545 of the Rev

Administrative Code, the petitioner must be deemed to have accepted the conditions and limitations attached to the appointment. Ifclause of section 2545 which authorized the President to remove officers of the City of Baguio at pleasure had been abrogated wpetitioner's appointment was issued, the appointee can not presumed to have abided by this condition.We therefore hold that the petitioner is entitled to remain in office as City Engineer of Baguio with all the emoluments, rights and privileappurtenant thereto, until he resigns or is removed for cause, and that respondent Mallare's appointment is ineffective in so far as it m

adversely affect those emoluments, rights and privileges. Without costs.Moran, C.J., Ozaeta, Paras, Pablo, and Montemayor, JJ., concur.G.R. No. 123708 June 19, 1997CIVIL SERVICE COMMISSION and PHILIPPINE AMUSEMENT AND GAMING CORPORATION, petitionvs.RAFAEL M. SALAS, respondent.

REGALADO, J.: The present petition for review on certiorari seeks to nullify the decision of the Court of Appeals, dated September 14, 1995, in CA-G.RNo. 38319 which set aside Resolution No. 92-1283 of the Civil Service Commission (CSC) and ordered the reinstatement of herein privrespondent Rafael M. Salas with full back wages for having been illegally dismissed by the Philippine Amusement and Gaming Corpora(PAGCOR), but without prejudice to the filing of administrative charges against him if warranted.

1



The records disclose that on October 7, 1989, respondent Salas was appointed by the PAGCOR Chairman as Internal Security Staff (member and assigned to the casino at the Manila Pavilion Hotel. However, his employment was terminated by the Board of DirectorPAGCOR on December 3, 1991, allegedly for loss of confidence, after a covert investigation conducted by the Intelligence DivisionPAGCOR. The summary of intelligence information claimed that respondent was allegedly engaged in proxy betting as detailed in affidavits purportedly executed by two customers of PAGCOR who claimed that they were used as gunners on different occasionsrespondent. The two polygraph tests taken by the latter also yielded corroborative and unfavorable results.On December 23, 1991, respondent Salas submitted a letter of appeal to the Chairman and the Board of Directors of PAGCOR, requesreinvestigation of the case since he was not given an opportunity to be heard, but the same was denied. On February 17, 1992, he appeto the Merit Systems Protection Board (MSPB) which denied the appeal on the ground that, as a confidential employee, respondent not dismissed from the service but his term of office merely expired. On appeal, the CSC issued Resolution No. 92-1283 which affirmed

decision of the MSPB.

2

Respondent Salas initially went to this Court on a petition for certiorari assailing the propriety of the questioned CSC resolution. Howen a resolution dated August 15, 1995,

3 the case was referred to the Court of Appeals pursuant to Revised Administrative Circular No.

which took effect on June 1, 1995.On September 14, 1995, the Court of Appeals rendered its questioned decision with the finding that herein respondent Salas is noconfidential employee, hence he may not be dismissed on the ground of loss of confidence. In so ruling, the appellate court applied "proximity rule" enunciated in the case of Griño, et al . vs.Civil Service Commission, et al .

4 It likewise held that Section 16 of Presiden

Decree No. 1869 has been superseded and repealed by Section 2(1), Article IX-B of the 1987 Constitution.Hence this appeal, which is premised on and calls for the resolution of the sole determinative issue of whether or not respondent Salasconfidential employee.Petitioners aver that respondent Salas, as a member of the Internal Security Staff of PAGCOR, is a confidential employee for sevreasons, viz.:(1) Presidential Decree No. 1869 which created the Philippine Amusement and Gaming Corporation expressly provides under Section

thereof that all employees of the casinos and related services shall be classified as confidential appointees;(2) In the case of Philippine Amusement and Gaming Corporation vs. Court of Appeals, et al .,

5 the Supreme Court has classified PAGC

employees as confidential appointees;(3) CSC Resolution No. 91-830, dated July 11, 1991, has declared employees in casinos and related services as confidential appointeesoperation of law; and(4) Based on his functions as a member of the ISS, private respondent occupies a confidential position.Whence, according to petitioners, respondent Salas was not dismissed from the service but, instead, his term of office had expired. Tadditionally contend that the Court of Appeals erred in applying the "proximity rule" because even if Salas occupied one of the lowest run the organizational ladder of PAGCOR, he performed the functions of one of the most sensitive positions in the corporation.

On the other hand, respondent Salas argues that it is the actual nature of an employee's functions, and not his designation or title, wdetermines whether or not a position is primarily confidential, and that while Presidential Decree No. 1869 may have declared all PAGCemployees to be confidential appointees, such executive pronouncement may be considered as a mere initial determination of

classification of positions which is not conclusive in case of conflict, in light of the ruling enunciated in Tria vs. Sto. Tomas, et al .

6

We find no merit in the petition and consequently hold that the same should be, as it is hereby, denied.Section 2, Rule XX of the Revised Civil Service Rules, promulgated pursuant to the provisions of Section 16(e) of Republic Act No. 2260 (CService Act of 1959), which was then in force when Presidential Decree No 1869 creating the Philippine Amusement and GamCorporation was passed, provided that "upon recommendation of the Commissioner, the President may declare a position as podetermining, primarily confidential, or highly technical in nature." It appears that Section 16 of Presidential Decree No. 1869 was predicat thereon, with the text thereof providing as follows:

All positions in the corporation, whether technical, administrative, professional or managerial are exempt from provisions of the Civil Service Law, rules and regulations, and shall be governed only by the personnel managempolicies set by the Board of Directors. All employees of the casinos and related services shall be classified as "confidenappointees.

On the strength of this statutory declaration, petitioner PAGCOR terminated the services of respondent Salas for lack of confidence aftsupposedly found that the latter was engaged in proxy betting. In upholding the dismissal of respondent Salas, the CSC ruled that h

considered a confidential employee by operation of law, hence there is no act of dismissal to speak of but a mere expiration oconfidential employee's term of office, such that a complaint for illegal dismissal will not prosper in this case for lack of legal basis.n reversing the decision of the CSC, the Court of Appeals opined that the provisions of Section 16 of Presidential Decree No. 1869 mayonger be applied in the case at bar because the same is deemed to have been repealed in its entirety by Section 2(1), Article IX-B of

1987 Constitution. 7

This is not completely correct. On this point, we approve the more logical interpretation advanced by the CSC to effect that "Section 16 of PD 1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law and Rules has beamended, modified or deemed repealed by the 1987 Constitution and Executive Order No. 292 (Administrative Code of 1987)."However, the same cannot be said with respect to the last portion of Section 16 which provides that "all employees of the casino arelated services shall be classified as 'confidential' appointees." While such executive declaration emanated merely from the provisionSection 2, Rule XX of the implementing rules of the Civil Service Act of 1959, the power to declare a position as policy-determinprimarily confidential or highly technical as defined therein has subsequently been codified and incorporated in Section 12(9), Book VExecutive Order No. 292 or the administrative Code







d. acts as witness/representative of Security Department during chips inventory, refills, yields, card shuffling and fshuffling;e. performs escort functions during the delivery of table capital boxes, refills and shoe boxes to the respective tablesduring transfer of yields to Treasury.

18

Based on the nature of such functions of herein private respondent and as found by respondent Court of Appeals, while it may be said honesty and integrity are primary considerations in his appointment as a member of the ISS, his position does not involve "such clntimacy" between him and the appointing authority, that is, the Chairman of PAGCOR, as would insure "freedom from misgiving

betrayals of personal trust."19

2. Although appointed by the Chairman, ISS members do not directly report to the Office of the Chairman in the performance of tofficial duties. An ISS member is subject to the control and supervision of an Area Supervisor who, in turn, only implements the directive

the Branch Chief Security Officer. The latter is himself answerable to the Chairman and the Board of Directors. Obviously, as the lowesthe chain of command, private respondent does not enjoy that "primarily close intimacy" which characterizes a confidential employee.3. The position of an ISS member belongs to the bottom level of the salary scale of the corporation, being in Pay Class 2 level only, wherthe highest level is Pay Class 12.Taking into consideration the nature of his functions, his organizational ranking and his compensation level, it is obviously beyond debthat private respondent cannot be considered a confidential employee. As set out in the job description of his position, one is struck byordinary, routinary and quotidian character of his duties and functions. Moreover, the modest rank and fungible nature of the posioccupied by private respondent is underscored by the fact that the salary attached to it is a meager P2,200.00 a month. There thus appnothing to suggest that private respondent's position was "highly" or, much less, "primarily" confidential in nature. The fact tsometimes, private respondent may handle ordinarily "confidential matters" or papers which are somewhat confidential in nature doessuffice to characterize his position as primarily confidential.

20

n addition, the allegation of petitioners that PAGCOR employees have been declared to be confidential appointees in the case of Philip

Amusement and Gaming Corporation vs. Court of Appeals, et al ., ante, is misleading. What was there stated is as follows:

The record shows that the separation of the private respondent was done in accordance with PD 1869, which provthat the employees of the PAGCOR hold confidential positions. Montoya is not assailing the validity of that law. Thethat he is questioning is what he calls the arbitrary manner of his dismissal thereunder that he avers entitled himdamages under the Civil Code. (Emphasis ours).

Thus, the aforecited case was decided on the uncontested assumption that the private respondent therein was a confidential employeethe simple reason that the propriety of Section 16 of Presidential Decree No. 1869 was never controverted nor raised as an issue thereThat decree was mentioned merely in connection with its provision that PAGCOR employees hold confidential positions. Evidentherefore, it cannot be considered as controlling in the case at bar. Even the fact that a statute has been accepted as valid in cases whervalidity was not challenged does not preclude the court from later passing upon its constitutionality in an appropriate cause where tquestion is squarely and properly raised. Such circumstances merely reinforce the presumption of constitutionality of the law.

21

WHEREFORE, the impugned judgment of respondent Court of Appeals is hereby AFFIRMED in toto.SO ORDERED.

CIVIL SERVICE COMMISSION,

G.R. No. 173264

Petitioner,

Present:

PUNO, C.J.,

QUISUMBING,

YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,



CARPIO,

AUSTRIA-MARTINEZ,

CORONA,

- versus -

CARPIO MORALES,

AZCUNA,

TINGA,

CHICO-NAZARIO,

VELASCO, JR.,

NACHURA,

REYES, and

LEONARDO-DE CASTRO, JJ.

NITA P. JAVIER,

Promulgated:

Respondent.

February 22, 2008

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

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking to reverse the Decision[1] of the Cour

Appeals (CA) dated September 29, 2005, as well as its Resolution of June 5, 2006, in CA-G.R. SP No. 88568, which set aside the resolut

and orders of the Civil Service Commission (CSC) invalidating the appointment of respondent as Corporate Secretary of the Board of Trust

of the Government Service and Insurance System (GSIS).

The facts are undisputed.

According to her service record,[2] respondent was first employed as Private Secretary in the GSIS, a government owned and contro

corporation (GOCC), on February 23, 1960, on a “confidential” status. On July 1, 1962, respondent was promoted to Tabulating Equipm

Operator with “permanent” status. The “permanent” status stayed with respondent throughout her career. She spent her entire ca

with GSIS, earning several more promotions, until on December 16, 1986, she was appointed Corporate Secretary of the Board of Trustee

the corporation.



On July 16, 2001, a month shy of her 64th birthday,[3] respondent opted for early retirement and received the corresponding mone

benefits.[4]

On April 3, 2002, GSIS President Winston F. Garcia, with the approval of the Board of Trustees, reappointed respondent as Corpo

Secretary, the same position she left and retired from barely a year earlier. Respondent was 64 years old at the time of

reappointment.[5] In its Resolution, the Board of Trustees classified her appointment as “confidential in nature and the tenure of office i

the pleasure of the Board.”*6+

Petitioner alleges that respondent's reappointment on confidential status was meant to illegally extend her service and circumvent the l

on compulsory retirement.[7] This is because under Republic Act (R.A.) No. 8291, or the Government Service Insurance System Act of 1the compulsory retirement age for government employees is 65 years, thus:

Sec. 13. x x x

(b) Unless the service is extended by appropriate authorities, retirement shall be compulsory for an employee at sixty-five (65) years of

with at least fifteen (15) years of service: Provided, That if he has less than fifteen (15) years of service, he may be allowed to continue in

service in accordance with existing civil service rules and regulations.

Under the civil service regulations, those who are in primarily confidential positions may serve even beyond the age of 65 years. Rule XI

the Revised Omnibus Rules on Appointments and Other Personnel Actions, as amended, provides that:

Sec. 12. (a) No person who has reached the compulsory retirement age of 65 years can be appointed to any position in

government, subject only to the exception provided under sub-section (b) hereof.

x x x x

b. A person who has already reached the compulsory retirement age of 65 can still be appointed to a coterminous/primarily confiden

position in the government.

A person appointed to a coterminous/primarily confidential position who reaches the age of 65 is considered automatically extended in

service until the expiry date of his/her appointment or until his/her services are earlier terminated.[8]

It is for these obvious reasons that respondent's appointment was characterized as “confidential” by the GSIS.

On October 10, 2002, petitioner issued Resolution No. 021314, invalidating the reappointment of respondent as CorpoSecretary, on the ground that the

position is a permanent, career position and not primarily confidential.[9]

On November 2, 2002, the CSC, in a letter of even date, through its Chairperson Karina Constantino-David, informed GSIS of C

invalidation of respondent's appointment, stating, thus:

Records show that Ms. Javier was formerly appointed as Corporate Secretary in a “Permanent” capacity until her retirement in July 16, 2

The Plantilla of Positions shows that said position is a career position. However, she was re -employed as Corporate Secretary, a position n

declared as confidential by the Board of Trustees pursuant to Board Resolution No. 94 dated April 3, 2002.

Since the position was not declared primarily confidential by the Civil Service Commission or by any law, the appointment of Ms. Javie

Corporate Secretary is hereby invalidated.[10]

Respondent and GSIS sought to reconsider the ruling of petitioner. CSC replied that the position of Corporate Secretary

permanent (career) position, and not primarily confidential (non-career); thus, it was wrong to appoint respondent to this position since

no longer complies with eligibility requirements for a permanent career status. More importantly, as respondent by then has reac

compulsory retirement at age 65, respondent was no longer qualified for a permanent career position.[11] With the denial of responde

plea for reconsideration, she filed a Petition for Review with the Court of Appeals.

On September 29, 2005, the CA rendered a Decision setting aside the resolution of petitioner invalidating responde

appointment.[12] The CA ruled that in determining whether a position is primarily confidential or otherwise, the nature of its functi

duties and responsibilities must be looked into, and not just its formal classification.[13] Examining the functions, duties and responsibil

of the GSIS Corporate Secretary, the CA concluded that indeed, such a position is primarily confidential in nature.

Petitioner filed a motion for reconsideration, which was denied by the CA on June 5, 2006.



Hence, herein petition.

The petition assails the CA Decision, contending that the position of Corporate Secretary is a career position and not prim

confidential in nature.[14] Further, it adds that the power to declare whether any position in government is primarily confidential, hi

technical or policy determining rests solely in petitioner by virtue of its constitutional power as the central personnel agency of

government.[15]

Respondent avers otherwise, maintaining that the position of Corporate Secretary is confidential in nature and that it is within

powers of the GSIS Board of Trustees to declare it so.[16] She argues that in determining the proper classification of a position, one sho

be guided by the nature of the office or position, and not by its formal designation.[17]

Thus, the Court is confronted with the following issues: whether the courts may determine the proper classification of a positio

government; and whether the position of corporate secretary in a GOCC is primarily confidential in nature.

The Court's Ruling

The courts may determine the proper

classification of a position in government.

Under Executive Order No. 292, or the Administrative Code of 1987, civil service positions are currently classified into either 1) ca

service and 2) non-career service positions.[18]

Career positions are characterized by: (1) entrance based on merit and fitness to be determined as far as practicable by competi

examinations, or based on highly technical qualifications; (2) opportunity for advancement to higher career positions; and (3) securit

tenure.[19]

In addition, the Administrative Code, under its Book V, sub-classifies career positions according to “appointment status,” divided i

1) permanent – which is issued to a person who meets all the requirements for the positions to which he is being appointed, including

appropriate eligibility prescribed, in accordance with the provisions of law, rules and standards promulgated in pursuance thereof; an

temporary – which is issued, in the absence of appropriate eligibles and when it becomes necessary in the public interest to fill a vacancy

a person who meets all the requirements for the position to which he is being appointed except the appropriate civil service eligibi

provided, that such temporary appointment shall not exceed twelve months, and the appointee may be replaced sooner if a

qualified civil service eligible becomes available.[20]

Positions that do not fall under the career service are considered non-career positions, which are characterized by: (1) entrance

bases other than those of the usual tests of merit and fitness utilized for the career service; and (2) tenure which is limited to a per

specified by law, or which is co-terminous with that of the appointing authority or subject to his pleasure, or which is limited to the durat

of a particular project for which purpose employment was made.[21]

Examples of positions in the non-career service enumerated in the Administrative Code are:

Sec. 9. Non-Career Service. - x x x

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 persona

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 spe

work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which

no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum

direction and supervision from the hiring agency; and

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

A strict reading of the law reveals that primarily confidential positions fall under the non-career service. It is also clear that, un

career positions, primarily confidential and other non-career positions do not have security of tenure. The tenure of a confidential emplo

is co-terminous with that of the appointing authority, or is at the latter's pleasure. However, the confidential employee may be appoin

or remain in the position even beyond the compulsory retirement age of

65 years.[22]



Stated differently, the instant petition raises the question of whether the position of corporate secretary in a GOCC, curre

classified by the CSC as belonging to the permanent, career service, should be classified as primarily confidential, i.e., belonging to the n

career service. The current GSIS Board holds the affirmative view, which is ardently opposed by petitioner. Petitioner maintains that it a

can classify government positions, and that the determination it made earlier, classifying the position of GOCC corporate secretary a

permanent, career position, should be maintained.

At present, there is no law enacted by the legislature that defines or sets definite criteria for determining primarily confiden

positions in the civil service. Neither is there a law that gives an enumeration of positions classified as primarily confidential.

What is available is only petitioner's own classification of civil service positions, as well as jurisprudence which describe or gexamples of confidential positions in government.

Thus, the corollary issue arises: should the Court be bound by a classification of a position as confidential already made by an age

or branch of government?

Jurisprudence establishes that the Court is not bound by the classification of positions in the civil service made by the legislativ

executive branches, or even by a constitutional body like the petitioner.[23] The Court is expected to make its own determination as to

nature of a particular position, such as whether it is a primarily confidential position or not, without being bound by prior classificati

made by other bodies.[24] The findings of the other branches of government are merely considered initial and not conclusive to

Court.[25] Moreover, it is well-established that in case the findings of various agencies of government, such as the petitioner and the C

the instant case, are in conflict, the Court must exercise its constitutional role as final arbiter of all justiciable controversies and disputes.[

Piñero v. Hechanova,[27] interpreting R.A. No. 2260, or the Civil Service Act of 1959, emphasized how the legislature refrained f

declaring which positions in the bureaucracy are primarily confidential, policy determining or highly technical in nature, and declared t

such a determination is better left to the judgment of the courts. The Court, with the ponencia of Justice J.B.L. Reyes, expounded, thus:

The change from the original wording of the bill (expressly declared by law x x x to be policy determining, etc.) to that finally approved

enacted (“or which are policy determining, etc. in nature”) came about because of the observations of Senator Tañada, that as origin

worded the proposed bill gave Congress power to declare by fiat of law a certain position as primarily confidential or policy determin

which should not be the case. The Senator urged that since the Constitution speaks of positions which are “primarily confidential, po

determining or highly technical in nature,” it is not within the power of Congress to declare what positions are primarily confidentia

policy determining. “It is the nature alone of the position that determines whether it is policy determining or primarily con fidential.” He

the Senator further observed, the matter should be left to the “proper implementation of the laws, depending upon the nature of

position to be filled”, and if the position is “highly confidential” then the President and the Civil Service Commissioner mu st implement

law.

To a question of Senator Tolentino, “But in positions that involved both confidential matters and matters which are routine, x x x wh

going to determine whether it is primarily confidential?” Senator Tañada replied:

“SENATOR TAÑADA: Well. at the f irst instance, it is the appointing power that determines that: the nature of the position. In case of conf

then it is the Court that determines whether the position is primarily confidential or not.

“I remember a case that has been decided by the Supr eme Court involving the position of a district engineer in Baguio, and there. precis

the nature of the position was in issue. It was the Supreme Court that passed upon the nature of the position, and held that the Presid

could not transfer the distr ict engineer in Baguio against his consent.”

Senator Tañada, therefore, proposed an amendment to section 5 of the bill, deleting the words “to be” and inserting in lieu t hereof

words “Positions which are by their nature” policy determining, etc., and deleting the last words “in nature”. Subsequently, Senator Pa

presented an amendment to the Tañada amendment by adopting the very words of the Constitution, i.e., “those which are podetermining, primarily confidential and highly technical in na ture”. The Padilla amendment was adopted, and it was this last wording wwhich section 5 was passed and was enacted (Senate Journal, May 10, 1959, Vol. 11, No. 32, pp. 679-681).

It is plain that, at least since the enactment of the 1959 Civil Service Act (R. A. 2260), it is the nature of the position which finally determ

whether a position is primarily confidential, policy determining or highly technical. Executive pronouncements can be no more than in

determinations that are not conclusive in case of conflict. And it must be so, or else it would then lie within the discretion of title C

Executive to deny to any officer, by executive fiat, the protection of section 4, Article XII, of the Constitution.[28] (Emphasis

underscoring supplied)

This doctrine in Piñero was reiterated in several succeeding cases.[29]





This explicit intent of the framers was recognized in Civil Service Commission v. Salas,[34] and Philippine Amusement and Gam

Corporation v. Rilloraza,[35] which leave no doubt that the question of whether the position of Corporate Secretary of GSIS is confidenti

nature may be determined by the Court.

The position of corporate secretary in a government owned

and controlled corporation, currently classified as a permanent

career position, is primarily confidential in nature.

First, there is a need to examine how the term “primarily confidential in nature” is described in jurisprudence. According to Salas,[3

Prior to the passage of the x x x Civil Service Act of 1959 (R.A. No. 2260), there were two recognized instances when a position mayconsidered primarily confidential: Firstly, when the President, upon recommendation of the Commissioner of Civil Service, has declared

position to be primarily confidential; and, secondly in the absence of such declaration, when by the nature of the functions of the office th

exists "close intimacy" between the appointee and appointing power which insures freedom of intercourse without embarrassmen

freedom from misgivings of betrayals of personal trust or confidential matters of state.[37] (Emphasis supplied)

However, Salas declared that since the enactment of R.A. No. 2260 and Piñero,[38] it is the nature of the position which finally determ

whether a position is primarily confidential or not, without regard to existing executive or legislative pronouncements either way, since

latter will not bind the courts in case of conflict.

A position that is primarily confidential in nature is defined as early as 1950 in De los Santos v. Mallare,[39] t hrough the ponenci

Justice Pedro Tuason, to wit:

x x x These positions (policy-determining, primarily confidential and highly technical positions), involve the highest degree of confidence

are closely bound up with and dependent on other positions to which they are subordinate, or are temporary in nature. It may truly be s

that the good of the service itself demands that appointments coming under this category be terminable at the will of the officer that ma

them.

x x x x

Every appointment implies confidence, but much more than ordinary confidence is reposed in the occupant of a position tha

primarily confidential. The latter phrase denotes not only confidence in the aptitude of the appointee for the duties of the office but prim

close intimacy which insures freedom of [discussion, delegation and reporting] without embarrassment or freedom from misgiving

betrayals of personal trust or confidential matters of state. x x x[40] (Emphasis supplied)

Since the definition in De los Santos came out, it has guided numerous other cases.[41] Thus, it still stands that a position is primconfidential when by the nature of the functions of the office there exists “close intimacy” between the appointee and appointing po

which insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals of personal trust or confiden

matters of state.

In classifying a position as primarily confidential, its functions must not be routinary, ordinary and day to day in character.[42

position is not necessarily confidential though the one in office may sometimes handle confidential matters or documents.[43] Only ordin

confidence is required for all positions in the bureaucracy. But, as held in De los Santos,[44] for someone holding a primarily confiden

position, more than ordinary confidence is required.

In Ingles v. Mutuc,[45] the Court, through Chief Justice Roberto Concepcion as ponente, stated:

Indeed, physicians handle confidential matters. Judges, fiscals and court stenographers generally handle matters of similar nat

The Presiding and Associate Justices of the Court of Appeals sometimes investigate, by designation of the Supreme Court, administracomplaints against judges of first instance, which are confidential in nature. Officers of the Department of Justice, likewise, investig

charges against municipal judges. Assistant Solicitors in the Office of the Solicitor General often investigate malpractice charges aga

members of the Bar. All of these are “confidential” matters, but such fact does not warrant the conclusion that the office or position o

government physicians and all Judges, as well as the aforementioned assistant solicitors and officers of the Department of Justice

primarily confidential in character.[46] (Emphasis supplied)

It is from De los Santos that the so-called “proximity rule” was derived. A position is considered to be primarily confidential w

there is a primarily close intimacy between the appointing authority and the appointee, which ensures the highest degree of trust

unfettered communication and discussion on the most confidential of matters.[47] This means that where the position occupied is alre

remote from that of the appointing authority, the element of trust between them is no longer predominant.[48] On further interpretatio

Griño, this was clarified to mean that a confidential nature would be limited to those positions not separated from the position of

appointing authority by an intervening public officer, or series of public officers, in the bureaucratic hierarchy.[49]



Consequently, brought upon by their remoteness to the position of the appointing authority, the following were declared by the C

to be not primarily confidential positions: City Engineer;[50] Assistant Secretary to the Mayor;[51] members of the Customs Police Forc

Port Patrol;[52] Special Assistant of the Governor of the Central Bank, Export Department;[53] Senior Executive Assistant, Clerk I

Supervising Clerk I and Stenographer in the Office of the President;[54] Management and Audit Analyst I of the Finance Ministry Intellige

Bureau;[55] Provincial Administrator;[56] Internal Security Staff of the Philippine Amusement and Gaming Corporation (PAGCOR);

Casino Operations Manager;[58] and Slot Machine Attendant.[59] All positions were declared to be not primarily confidential des

having been previously declared such either by their respective appointing authorities or the legislature.

The following were declared in jurisprudence to be primarily confidential positions: Chief Legal Counsel of the Philippine National Bank;

Confidential Agent of the Office of the Auditor, GSIS;[61] Secretary of the Sangguniang Bayan;[62] Secretary to the City Mayor;[63] SenSecurity and Security Guard in the Office of the Vice Mayor;[64] Secretary to the Board of a government corporation;[65] City Legal Coun

City Legal Officer or City Attorney;[66] Provincial Attorney;[67] Private Secretary;[68] and Board Secretary II of the Philip pine State Colleg

Aeronautics.[69]

In fine, a primarily confidential position is characterized by the close proximity of the positions of the appointer and appointee as

as the high degree of trust and confidence inherent in their relationship.

Ineluctably therefore, the position of Corporate Secretary of GSIS, or any GOCC, for that matter, is a primarily confidential positi

The position is clearly in close proximity and intimacy with the appointing power. It also calls for the highest degree of confidence betw

the appointer and appointee.

In classifying the position of Corporate Secretary of GSIS as primarily

confidential, the Court took into consideration the proximity rule together with the duties of the corporate secretary, enumerated

follows:[70]

1. Performs all duties, and exercises the power, as defined and enumerated in Section 4, Title IX, P.D. No. 1146;

2. Undertakes research into past Board resolutions, policies, decisions, directives and other Board action, and relate thes

present matters under Board consideration;

3. Analyzes and evaluates the impact, effects and relevance of matters under Board consideration on existing Board policies

provide the individual Board members with these information so as to guide or enlighten them in their Board decision;

4. Records, documents and reproduces in sufficient number all proceedings of Board meetings and disseminate relevant Bo

decisions/information to those units concerned;

5. Coordinates with all functional areas and units concerned and monitors the manner of implementation of approved Bo

resolutions, policies and directives;

6. Maintains a permanent, complete, systematic and secure compilation of all previous minutes of Board meetings, together wall their supporting documents;

7. Attends, testifies and produces in Court or in administrative bodies duly certified copies of Board resolutions, when

required;

8. Undertakes the necessary physical preparations for scheduled Board meetings;

9. Pays honoraria of the members of the Board who attend Board meetings;

10. Takes custody of the corporate seal and safeguards against unauthorized use; and

11. Performs such other functions as the Board may direct and/or require.

The nature of the duties and functions attached to the position points to its highly confidential character.[71] The secretary reports dire

to the board of directors, without an intervening officer in between them.[72] In such an arrangement, the board expects from the secre

nothing less than the highest degree of honesty, integrity and loyalty, which is crucial to ma intaining between them “freedom of interco

without embarrassment or freedom from misgivings or betrayals of personal trust or confidential matters of state.”*73+

The responsibilities of the corporate secretary are not merely clerical or

routinary in nature. The work involves constant exposure to sensitive policy matters and confidential deliberations that are not always o

to the public, as unscrupulous persons may use them to harm the corporation. Board members must have the highest confidence in

secretary to ensure that their honest sentiments are always and fully expressed, in the interest of the corporation. In this respect, the na

of the corporate secretary's work is akin to that of a personal secretary of a public official, a position long recognized to be prima

confidential in nature.[74] The only distinction is that the corporate secretary is secretary to the entire board, composed of a numbe

persons, but who essentially act as one body, while the private secretary works for only one person. However, the degree of confide

involved is essentially the same.

Not only do the tasks listed point to sensitive and confidential acts that the corporate secretary must perform, they also include “s

other functions as the Board may direct and/or require,” a clear indication of a closely intimate relationship that exists between

secretary and the board. In such a highly acquainted relation, great trust and confidence between appointer and appointee is required.



The loss of such trust or confidence could easily result in the board's termination of the secretary's services and ending of his te

This is understandably justified, as the board could not be expected to function freely with a suspicious officer in its midst. It is for th

same reasons that jurisprudence, as earlier cited, has consistently characterized personal or private secretaries, and board secretaries

positions of a primarily confidential nature.[75]

The CA did not err in declaring that the position of Corporate Secretary of GSIS is primarily confidential in nature and does not be

to the career service.

The Court is aware that this decision has repercussions on the tenure of other corporate secretaries in various GOCCs. The offi

likely assumed their positions on permanent career status, expecting protection for their tenure and appointments, but are now re-classi

as primarily confidential appointees. Such concern is unfounded, however, since the statutes themselves do not classify the positiocorporate secretary as permanent and career in nature. Moreover, there is no absolute guarantee that it will not be classified

confidential when a dispute arises. As earlier stated, the Court, by legal tradition, has the power to make a final determination as to w

positions in government are primarily confidential or otherwise. In the light of the instant controversy, the Court's view is that the gre

public interest is served if the position of a corporate secretary is classified as primarily confidential in nature.

Moreover, it is a basic tenet in the country's constitutional system that “public office is a public trust,”*76+ and that the re is no ve

right in public office, nor an absolute right to hold office.[77] No proprietary title attaches to a public office, as public service is n

property right.[78] Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be sai

have any vested right in an office.[79] The rule is that offices in government, except those created by the constitution, may be abolish

altered, or created anytime by statute.[80] And any issues on the classification for a position in government may be brought to

determined by the courts.[81]

WHEREFORE, premises considered, the Petition is DENIED. The

Decision of the Court of Appeals dated September 29, 2005, in CA-G.R. SP No. 88568, as well as its Resolution of June 5, 2006 are her

AFFIRMED in toto.

No costs.

SO ORDERED.

G.R. No. 91602 February 26, 1991HONORABLE SIMPLICIO C. GRIÑO, SIXTO P. DEMAISIP, SANTOS B. AGUADERA, MANUEL B. TRAVIÑA and MANUEL CASUMPANG, petitioners,vs.

CIVIL SERVICE COMMISSION, TEOTIMO ARANDELA, CIRILO GELVEZON, TEODULFO DATO-ON, and NELSON GEDUSPAN, respondents.Sixto P. Demaisip for petitioners.

Rex C. Muzones for private respondents.

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

GANCAYCO, J.:p The main issue in this petition is whether or not the position of a provincial attorney and those of his legal subordinates are primaconfidential in nature so that the services of those holding the said items can be terminated upon loss of confidence.The facts of this case are simple.Petitioner Sixto Demaisip was the first appointed Provincial Attorney of Iloilo. He held this position from April 3, 1973 up to June 2, 1when he offered to resign and his resignation was accepted by the then Acting Governor. In his resignation letter, petitioner Demarecommended the elevation of respondent Teotimo Arandela from Senior Legal Officer to Provincial Attorney. OIC Governor Licurgo Tiraater on decided to appoint respondent Arandela as the Provincial Attorney. Respondent Cirilo Gelvezon, on the other hand, was promo

from Legal Officer II to Senior Legal Officer. Respondents Teodolfo Dato-on and Nelson Geduspan were appointed to the position of LeOfficer II.On February 2, 1988, petitioner Simplicio Griño assumed office as the newly elected governor of Iloilo. One month later, he informrespondent Arandela and all the legal officers at the Provincial Attorney's Office about his decision to terminate their services. In his letpetitioner Griño made mention of an article pertaining to the Iloilo office of the Provincial Attorney which appeared in the Panay News

which "undermined that trust and confidence" that he reposed on them. Petitioner Demaisip was reappointed by Governor Griño as Provincial Attorney, The latter, on the other hand, arranged the replacements of the other legal officers. Respondent Cirilo Gelvezon wreplaced by petitioner Santos Aguadera, respondent Nelson Geduspan was replaced by petitioner Manuel Casumpang and petitioManuel Traviña took the place of respondent Teodolfo Dato-on.On March 15, 1988, petitioner Governor Griño formally terminated the services of the respondents herein on the ground of loss of trand confidence. This action taken by the governor was appealed by respondents to the Merit Systems Protection Board of the Civil SerCommission.



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

Civil Service Commission.n Resolution No. 89-736 dated October 9, 1989, the Civil Service Commission affirmed the Order of the Merit Systems Protection Bo

and directed that the respondents be restored to their former legal positions and be paid back salaries and other benefits.Petitioners filed a Motion for Reconsideration of the above-mentioned Decision of the Civil Service Commission. The motion was deniedDecember 7, 1989 in Resolution No. 89-920.Hence, this petition for review whereby petitioners seek the reversal of Resolution No. 89-736 of the Civil Service Commission Resolution No. 89-920 which denied the Motion for Reconsideration.We shall first discuss whether the position of a provincial attorney is primarily confidential so that the holder thereof may be termina

upon loss of confidence.n Cadiente vs. Santos,1 this Court ruled that the position of a city legal officer is undeniably one which is primarily confidential in

manner:In resolving the merits of the instant case, We find as an undeniable fact that the position of a City Legal Officer is owhich is "primarily confidential." This Court held in the case of Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 4that the position of a City Legal Officer is one requiring that utmost confidence on the part of the mayor be extendedsaid officer. The relationship existing between a lawyer and his client, whether a private individual or a public officeone that depends on the highest degree of trust that the latter entertains for the counsel selected. As stated in the casPinero vs. Hechanova, L-22562, October 22, 1966, 18 SCRA 417 (citing De los Santos vs. Mallare, 87 Phil. 289), the phr"primarily confidential" "denotes not only confidence in the aptitude of the appointee for the duties of the office primarily close intimacy which insures freedom of intercourse, without embarrassment or freedom from misgivingbetrayals of personal trust on confidential matters of state. (Emphasis supplied.)The tenure of officials holding primarily confidential positions ends upon loss of confidence, because their term of of

lasts only as long as confidence in them endure; and thus their cessation involves no removal (Corpus vs. Cuaderno23721, March 31, 1965, 13 SCRA 591-596). When such confidence is lost and the officer holding such position is separafrom the service, such cessation entails no removal but an expiration of his term. In the case of Hernandez vs. Villega17287, June 30, 1965, 14 SCRA 548, it was held — It is to be understood of course that officials and employees holding primarily confidential positions continue only folong as confidence in them endures. The termination of their official relation can be justified on the ground of losconfidence because in that case their cessation from office involves no removal but merely the expiration of the termoffice — two different causes for the termination of official relations recognized in the Law of Public Officers.In the case at bar, when the respondent City Mayor of Davao terminated the services of the petitioner, he was removed or dismissed. There being no removal or dismissal it could not, therefore, be said that there was a violationthe constitutional provision that "no officer or employee in the civil service shall be suspended or dismissed exceptcause as provided by law" (Article XII-B, Section 1 (3), 1973 Constitution).

The matter of expiration of a term of an officer holding a primarily confidential position, as distinguished from a remoor dismissal, was further explained by this Court, in the case of Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SC171, in this wise:When an incumbent of a primarily confidential position holds office at the pleasure of the appointing power, and pleasure turns into a displeasure, the incumbent is not removed or dismissed from office — his term merely expiremuch the same way as an officer, whose right thereto ceases upon expiration of the fixed term for which he had bappointed or elected, is not and cannot be deemed removed or dismissed therefrom, upon expiration of said term.The main difference between the former — the primary confidential officer — and the latter is that the latter's terfixed or definite, whereas that of the former is not pre-fixed, but indefinite, at the time of his appointment or electand becomes fixed and determined when the appointing power expresses its decision to put an end to the services ofincumbent. When this event takes place, the latter is not removed or dismissed from office — his term merely expiredThe foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes, stressed in the case CorpusCuaderno, L-23721, March 31, 1965, 13 SCRA 591. In said case We stated that:

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

2

n Besa vs. Philippine National Bank,3 where petitioner, who was the Chief Legal Counsel with the rank of Vice President of the respond

Philippine National Bank, questioned his being transferred to the position of Consultant on Legal Matters in the Office of President, Court, considering said position to be primarily confidential held —

It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank, as of any lawyer for matter, is impressed with a highly technical aspect. As had been pointed out, however, it does not mean that therebclient is precluded from substituting in his stead another practitioner. That is his right; Ms decision to terminaterelationship once made is impressed with the attribute of finality. The lawyer cannot be heard to complain; it is enothat his right to compensation earned be duly respected.In that sense, it is equally clear that where the position partakes of the attributes of being both technical and confidenthere can be no insistence of a fixed or a definite term if the latter aspect predominates. To paraphrase the languag

the Chief Justice in the opinion previously cited, the incumbent of a primarily confidential position, as was the case



petitioner, should realize that at any time the appointing power may decide that his services are no longer neededthus correctly viewed, Corpus v. Cuaderno cannot be read as lending support to petitioner's efforts to retain his posias Chief Legal Counsel of respondent Bank, contrary to its wishes as so explicitly declared in its Resolution No. 1053.

The question now is — should the ruling in Cadiente be made applicable to a provincial attorney? According to petitioners, Cadiente must be applied because by the nature of the functions of a provincial attorney and a city legal officer, their positiare both primarily confidential. Respondents, on the other hand, maintain that since the Civil Service Commission has already classifiedposition of private respondent Arandela as a career position and certified the same as permanent, he is removable only for cause, therefore Cadiente is not applicable.We agree with the petitioners and answer the question earlier propounded in the affirmative. A city legal officer appointed by a city mato work for and in behalf of the city has for its counterpart in the province a provincial attorney appointed by the provincial governor. In

same vein, a municipality may have a municipal attorney who is to be named by the appointing power. The positions of city legal officerprovincial attorney were created under Republic Act No. 5185 which categorized them together as positions of "trust", to wit:Sec. 19. Creation of positions of Provincial Attorney and City Legal officer . — To enable the provincial and governments to avail themselves of the full time and trusted services of legal officers, the positions of provincial attorand city legal officer may be created and such officials shall be appointed in such manner as is provided for under Sectfour of this Act. For this purpose the functions hitherto performed by the provincial and city fiscals in serving as leadviser and legal officer for civil cases of the province and city shall be transferred to the provincial attorney and city lofficer, respectively. (Emphasis supplied.)

4

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

A comparison of the functions, powers and duties of a city legal officer as provided in the Local Government Code with those of provincial attorney of Iloilo would reveal the close similarity of the two positions. Said functions clearly reflect the highly confidential na

of the two offices and the need for a relationship based on trust between the officer and the head of the local government unit he servThe "trusted services" to be rendered by the officer would mean such trusted services of a lawyer to his client which is of the higdegree of trust.

5

The fact that the position of respondent Arandela as provincial attorney has already been classified as one under the career service certified as permanent by the Civil Service Commission cannot conceal or alter its highly confidential nature. As in Cadiente whereposition of the city legal officer was duly attested as permanent by the Civil Service Commission before this Court declared that the sawas primarily confidential, this Court holds that the position of respondent Arandela as the provincial attorney of Iloilo is also a primconfidential position. To rule otherwise would be tantamount to classifying two positions with the same nature and functions in ncompatible categories. This being the case, and following the principle that the tenure of an official holding a primarily confiden

position ends upon loss of confidence,6 the Court finds that private respondent Arandela was not dismissed or removed from office w

his services were terminated. His term merely expired.The attorney-client relationship is strictly personal because it involves mutual trust and confidence of the highest degree, irrespectiv

whether the client is a private person or a government functionary.

7

The personal character of the relationship prohibits its delegatiofavor of another attorney without the client's consent.8

However, the legal work involved, as distinguished from the relationship, can be delegated.9 The practice of delegating work of a counse

his subordinates is apparent in the Office of the Provincial Attorney wherein it can be gleaned from the power granted to such officeexercise administrative supervision and control over the acts and decision of his subordinates.

10

t is therefore possible to distinguish positions in the civil service where lawyers act as counsel in confidential and non-confidential positby simply looking at the proximity of the position in question in relation to that of the appointing authority. Occupants of such positiwould be considered confidential employees if the predominant reason they were chosen by the appointing authority is the latter's bethat he can share a close intimate relationship with the occupant which measures freedom of discussion, without fear of embarrassmenmisgivings of possible betrayal of personal trust on confidential matters of state.

11

This implies that positions in the civil service of such nature would be limited to those not separated from the position of the appoinauthority by an intervening public officer, or series of public officers, in the bureaucratic hierarchy. This is an additional reason why positions of "City Legal Officer" and "Private Secretary to the President" were considered primarily confidential by the Court.

12 On

other hand, a customs policeman serving in the Harbor Patrol, in relation to the Commissioner of Customs, and an executive assiststenographer, or clerk in the Office of the President, were not considered so by the Court.

13

There is no need to extend the professional relationship to the legal staff which assists the confidential employer above described. Sthe positions occupied by these subordinates are remote from that of the appointing authority, the element of trust between them isonger predominant. The importance of these subordinates to the appointing authority now lies in the contribution of their legal skil

facilitate the work of the confidential employee. At this level of the bureaucracy, any impairment of the appointing authority's interest client, which may be caused through the breach of residual trust by any of these lower-ranked lawyers, can be anticipated and prevenby the confidential employee, as a reasonably competent office head, through the exercise of his power to "revapprove, reverse, or modify" their acts and decisions.

14 At this level, the client can be protected without need of imposing upon the low

ranked lawyers the fiduciary duties inherent in the attorney-client relationship. Hence, there is now no obstacle to giving full effect to security of tenure principle to these members of the civil service.Thus, with respect to the legal assistants or subordinates of the provincial attorney namely, Cirilo Gelvezon, Teodolfo Dato-on and Nel

Geduspan, the Cadiente and Besa rulings cannot apply. To recall, said cases specifically dealt with the positions of city legal officer of



city and chief legal counsel of the PNB. There was no reference to their legal staff or subordinates. As head of their respective departmethe city legal officer, the provincial attorney or the PNB chief legal counsel cannot be likened to their subordinates. The latter have bemployed due to their technical qualifications. Their positions are highly technical in character and not confidential, so they are permanemployees, and they belong to the category of classified employees under the Civil Service Law. Thus, the items of Senior Legal Officer Legal Officer II remain permanent as classified by the Civil Service Commission. Consequently, the holders of the said items, bepermanent employees, enjoy security of tenure as guaranteed under the Constitution.This notwithstanding, petitioners contend that respondents are estopped from protesting the termination of their services because of tactions which, if taken together, would allegedly reveal that they have accepted their termination, such as: applying for clearances, remaining in office and signing their payroll for March 15, 1988 acknowledging therein that their appointment "terminated/expired."We cannot agree with petitioners in this regard. The respondents did the above-mentioned acts because their services were actu

dispensed with by petitioner Governor Griño. As a consequence of their termination, they could not remain in office and as required ofgovernment employee who is separated from the government service, they had to apply for clearances. However, this did not mean tthey believed in principle that they were validly terminated. The same should not prevent them from later on questioning the validitsaid termination.The facts clearly show that respondents protested their termination with the Civil Service Commission within a month from the timtheir termination. The Court holds that the said protest was filed within a reasonable period of time.WHEREFORE, and in view of the foregoing, the petition is GRANTED with respect to the position of provincial attorney of Iloilo. RespondTeotimo Arandela is hereby ordered to vacate said position upon the finality of this Decision. The Decision of the respondent Civil ServCommission pertaining to respondents Cirilo Gelvezon, Teodolfo Dato-on and Nelson Geduspan is hereby AFFIRMED.SO ORDERED.Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Bidin, Medialdea and Regalado, JJ., concur. Gutierrez, Jr., J., concurs in the result.

Griño-Aquino and Davide, Jr., JJ., took no part.

G.R. No. 166715 August 14, 2008

ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA, ED VINCENT S. ALBANO, ROMEO R. ROB

RENE B. GOROSPE and EDWIN R. SANDOVAL, petitioners,

vs.

HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of

Bureau of Internal Revenue, and HON. ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents.

D E C I S I O N

CORONA, J.:

This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act (RA) 93352 (Attrition Act of 20

RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of Internal Revenue (BIR) and the Burea

Customs (BOC). The law intends to encourage BIR and BOC officials and employees to exceed their revenue targets by providing a system

rewards and sanctions through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation Bo

(Board).3 It covers all officials and employees of the BIR and the BOC with at least six months of service, regardless of employment status

The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the year, as determined by

Development Budget and Coordinating Committee (DBCC). Any incentive or reward is taken from the fund and allocated to the BIR and

BOC in proportion to their contribution in the excess collection of the targeted amount of tax revenue.5

The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF) or his/her Undersecretary,

Secretary of the Department of Budget and Management (DBM) or his/her Undersecretary, the Director General of the National EconoDevelopment Authority (NEDA) or his/her Deputy Director General, the Commissioners of the BIR and the BOC or their Dep

Commissioners, two representatives from the rank-and-file employees and a representative from the officials nominated by their recogni

organization.6

Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and release of the Fund; (2) set criteria

procedures for removing from the service officials and employees whose revenue collection falls short of the target; (3) terminate person

in accordance with the criteria adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functio

including the issuance of rules and regulations and (6) submit an annual report to Congress.7

The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate and issue the implementing rules

regulations of RA 9335,8 to be approved by a Joint Congressional Oversight Committee created for such purpose.9





Public officers enjoy the presumption of regularity in the performance of their duties. This presumption necessarily obtains in favor of

and BOC officials and employees. RA 9335 operates on the basis thereof and reinforces it by providing a system of rewards and sanctions

the purpose of encouraging the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their reven

generation capability and collection.15

The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by mere conjecture or denie

advance (as petitioners would have the Court do) specially in this case where it is an underlying principle to advance a declared public pol

Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into "bounty hunters and mercenar

is not only without any factual and legal basis; it is also purely speculative.

A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification, there must be a clear

unequivocal breach of the Constitution, not a doubtful and equivocal one.16 To invalidate RA 933 5 based on petitioners’ base

supposition is an affront to the wisdom not only of the legislature that passed it but also of the executive which approved it.

Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and exceptional performance. A sys

of incentives for exceeding the set expectations of a public office is not anathema to the concept of public accountability. In fac

recognizes and reinforces dedication to duty, industry, efficiency and loyalty to public service of deserving government personnel.

In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the customs as well as other parties

amount not exceeding one-half of the net proceeds of forfeitures in violation of the laws against smuggling. Citing Dorsheimer v. Uni

States,18 the U.S. Supreme Court said:

The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and industry in detecting fraudulent attem

to evade payment of duties and taxes.

In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a consequence of their zeal in

enforcement of tax and customs laws, they exceed their revenue targets. In addition, RA 9335 establishes safeguards to ensure that

reward will not be claimed if it will be either the fruit of "bounty hunting or mercenary activity" or the product of the irregular performa

of official duties. One of these precautionary measures is embodied in Section 8 of the law:

SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. – The officials, examiners, and employees of the [BIR] and

[BOC] who violate this Act or who are guilty of negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordin

diligence in the performance of their duties shall be held liable for any loss or injury suffered by any business establishment or taxpayer

result of such violation, negligence, abuse, malfeasance, misfeasance or failure to exercise extraordinary diligence.

Equal Protection

Equality guaranteed under the equal protection clause is equality under the same conditions and among persons similarly situated;

equality among equals, not similarity of treatment of persons who are classified based on substantial differences in relation to the objec

be accomplished.19 When things or persons are different in fact or circumstance, they may be treated in law differently. In Victorian

El izalde Rope Workers’ Union,20 this Court declared:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the [S]tate.

not, therefore, a requirement, in order to avoid the const itutional prohibition against inequality, that every man, woman and child should

affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as such, bu

persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The Constitution does not req

that things which are different in fact be treated in law as though they were the same. The equal protection clause does not fodiscrimination as to things that are different. It does not prohibit legislation which is limited either in the object to which it is directed o

the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other department

knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars. A

is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that the m

fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it be reasona

which means that the classification should be based on substantial distinctions which make for real differences, that it must be germane

the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to each member of the cl

This Court has held that the standard is satisfied if the classification or distinction is based on a reasonable foundation or rational basis

is not palpably arbitrary.



In the exercise of its power to make classifications for the purpose of enacting laws over matters within its jurisdiction, the stat

recognized as enjoying a wide range of discretion. It is not necessary that the classification be based on scientific or marked difference

things or in their relation. Neither is it necessary that the classification be made with mathematical nicety. Hence, legislative classificat

may in many cases properly rest on narrow distinctions, for the equal protection guaranty does not preclude the legislature from recogni

degrees of evil or harm, and legislation is addressed to evils as they may appear.21 (emphasis supplied)

The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable foundation or rational basis

not arbitrary.22 With respect to RA 9335, its expressed public policy is the optimization of the revenue-generation capability and collec

of the BIR and the BOC.23 Since the subject of the law is the revenue- generation capability and collection of the BIR and the BOC,

incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover, the law concerns only the BIR

the BOC because they have the common distinct primary function of generating revenues for the national government through the collecof taxes, customs duties, fees and charges.

The BIR performs the following functions:

Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal Revenue, which shall be headed by and subject to the supervision

control of the Commissioner of Internal Revenue, who shall be appointed by the President upon the recommendation of the Secretary [of

DOF], shall have the following functions:

(1) Assess and collect all taxes, fees and charges and account for all revenues collected;

(2) Exercise duly delegated police powers for the proper performance of its functions and duties;

(3) Prevent and prosecute tax evasions and all other illegal economic activities;

(4) Exercise supervision and control over its constituent and subordinate units; and

(5) Perform such other functions as may be provided by law.24

xxx xxx xxx (emphasis supplied)

On the other hand, the BOC has the following functions:

Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall be headed and subject to the management and control of

Commissioner of Customs, who shall be appointed by the President upon the recommendation of the Secretary[of the DOF] and hereina

referred to as Commissioner, shall have the following functions:

(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;

(2) Account for all customs revenues collected;

(3) Exercise police authority for the enforcement of tariff and customs laws;

(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of entry;

(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and aircrafts in all ports of entry;

(6) Administer all legal requirements that are appropriate;

(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;

(8) Exercise supervision and control over its constituent units;

(9) Perform such other functions as may be provided by law.25


Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of being the instrumentalities thro

which the State exercises one of its great inherent functions – taxation. Indubitably, such substantial distinction is germane and intima

related to the purpose of the law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy

demands of equal protection.



Undue Delegation

Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the sufficient standard test. A law

complete when it sets forth therein the policy to be executed, carried out or implemented by the delegate.26 It lays down a suffic

standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the delegate’s authority and prevthe delegation from running riot.27 To be sufficient, the standard must specify the limits of the delegate’s authority, annou nce

legislative policy and identify the conditions under which it is to be implemented.28

RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and the implementing agencie

carrying out the provisions of the law. Section 2 spells out the policy of the law:

SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the revenue-generation capability and collection of the Burea

Internal Revenue (BIR) and the Bureau of Customs (BOC) by providing for a system of rewards and sanctions through the creation o

Rewards and Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the purpose of encouraging t

officials and employees to exceed their revenue targets.

Section 4 "canalized within banks that keep it from overflowing"29 the delegated power to the President to fix revenue targets:

SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund, hereinafter referred to as the Fund, is hereby created, to be sour

from the collection of the BIR and the BOC in excess of their respective revenue targets of the year, as determined by the Developm

Budget and Coordinating Committee (DBCC), in the following percentages:

Excess of Collection of the Excess the Revenue Targets

Percent (%) of the Excess Collection to Accrue to the Fund

30% or below

– 15%

More than 30%

– 15% of the first 30% plus 20% of the remaining excess

The Fund shall be deemed automatically appropriated the year immediately following the year when the revenue collection target exceeded and shall be released on the same fiscal year.

Revenue targets shall refer to the original estimated revenue collection expected of the BIR and the BOC for a given fiscal year as state

the Budget of Expenditures and Sources of Financing (BESF) submitted by the President to Congress. The BIR and the BOC shall submit to

DBCC the distribution of the agencies’ revenue targets as allocated among its revenue districts in the case of the BIR, and t he collec

districts in the case of the BOC.


Revenue targets are based on the original estimated revenue collection expected respectively of the BIR and the BOC for a given fiscal y

as approved by the DBCC and stated in the BESF submitted by the President to Congress.30 Thus, the determination of revenue targets d

not rest solely on the President as it also undergoes the scrutiny of the DBCC.

On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the conditions under which officials and employ

whose revenue collection falls short of the target by at least 7.5% may be removed from the service:

SEC. 7. Powers and Functions of the Board. – The Board in the agency shall have the following powers and functions:

xxx xxx xxx

(b) To set the criteria and procedures for removing from service officials and employees whose revenue collection falls short of the targe

at least seven and a half percent (7.5%), with due consideration of all relevant factors affecting the level of collection as provided in the ru

and regulations promulgated under this Act, subject to civil service laws, rules and regulations and compliance with substantive

procedural due process: Provided, That the following exemptions shall apply:



1. Where the district or area of responsibility is newly-created, not exceeding two years in operation, as has no historical record of collec

performance that can be used as basis for evaluation; and

2. Where the revenue or customs official or employee is a recent transferee in the middle of the period under consideration unless

transfer was due to nonperformance of revenue targets or potential nonperformance of revenue targets: Provided, however, That when

district or area of responsibility covered by revenue or customs officials or employees has suffered from economic difficulties brought ab

by natural calamities or force majeure or economic causes as may be determined by the Board, termination shall be considered only a

careful and proper review by the Board.

(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph: Provided, That such decision shal

immediately executory: Provided, further, That the application of the criteria for the separation of an official or employee from service unthis Act shall be without prejudice to the application of other relevant laws on accountability of public officers and employees, such as

Code of Conduct and Ethical Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act;


Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the BOC. The guarantee of securit

tenure only means that an employee cannot be dismissed from the service for causes other than those provided by law and only after

process is accorded the employee.31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue collec

falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting the level of collection. This standar

analogous to inefficiency and incompetence in the performance of official duties, a ground for disciplinary action under civil service laws

The action for removal is also subject to civil service laws, rules and regulations and compliance with substantive and procedural

process.

At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and equity," "public convenience

welfare" and "simplicity, economy and welfare."33 In this case, the declared policy of optimization of the revenue-generation capability

collection of the BIR and the BOC is infused with public interest.

Separation Of Powers

Section 12 of RA 9335 provides:

SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint Congressional Oversight Committee composed of se

Members from the Senate and seven Members from the House of Representatives. The Members from the Senate shall be appointed by

Senate President, with at least two senators representing the minority. The Members from the House of Representatives shall be appoin

by the Speaker with at least two members representing the minority. After the Oversight Committee will have approved the implementrules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist.

The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the implementing rules and regulati

(IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On May 22, 2006, it approved the said IRR. From then on, it became func

officio and ceased to exist. Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the

may be considered moot and academic.

This notwithstanding, this might be as good a time as any for the Court to confront the issue of the constitutionality of the Jo

Congressional Oversight Committee created under RA 9335 (or other similar laws for that matter).

The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional oversight in Macalintal v. Commission

Elections34 is illuminating:

Concept and bases of congressional oversight

Broadly defined, the power of oversight embraces all activities undertaken by Congress to enhance its understanding of and influence o

the implementation of legislation it has enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress: (a

monitor bureaucratic compliance with program objectives, (b) to determine whether agencies are properly administered, (c) to elimin

executive waste and dishonesty, (d) to prevent executive usurpation of legislative authority, and (d) to assess executive conformity with

congressional perception of public interest.

The power of oversight has been held to be intrinsic in the grant of legislative power itself and integral to the checks and balances inher

in a democratic system of government. x x x x x x x x x









The bill may be "killed" in the committee or it may be recommended for approval, with or without amendments, sometimes after pu

hearings are first held thereon. If there are other bills of the same nature or purpose, they may all be consolidated into one bill un

common authorship or as a committee bill.

Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is read in its entirety, scrutinized, deba

upon and amended when desired. The second reading is the most important stage in the passage of a bill.

The bill as approved on second reading is printed in its final form and copies thereof are distributed at least three days before the t

reading. On the third reading, the members merely register their votes and explain them if they are allowed by the rules. No further deb

is allowed.

Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the three readings. If there are differen

between the versions approved by the two chambers, a conference committee58 representing both Houses will draft a compromise meas

that if ratified by the Senate and the House of Representatives will then be submitted to the President for his consideration.

The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated with the signatures of the Senate Presid

the Speaker, and the Secretaries of their respective chambers…59

The President’s role in law -making.

The final step is submission to the President for approval. Once approved, it takes effect as law after the required publication.60

Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to sufficient standards established in

said law, the law must be complete in all its essential terms and conditions when it leaves the hands of the legislature. And it may

deemed to have left the hands of the legislature when it becomes effective because it is only upon effectivity of the statute that legal rig

and obligations become available to those entitled by the language of the statute. Subject to the indispensable requisite of publication un

the due process clause,61 the determination as to when a law takes effect is wholly the prerogative of Congress.62 As such, it is only upon

effectivity that a law may be executed and the executive branch acquires the duties and powers to execute the said law. Before that po

the role of the executive branch, particularly of the President, is limited to approving or vetoing the law.63

From the moment the law becomes effective, any provision of law that empowers Congress or any of its members to play any role in

implementation or enforcement of the law violates the principle of separation of powers and is thus unconstitutional. Under this principl

provision that requires Congress or its members to approve the implementing rules of a law after it has already taken effect shal

unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling made by the members of

executive branch charged with the implementation of the law.

Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there may be similar provisions of o

laws that may be invalidated for failure to pass this standard, the Court refrains from invalidating them wholesale but will do so at

proper time when an appropriate case assailing those provisions is brought before us.64

The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335 on the other provisions of the l

Will it render the entire law unconstitutional? No.

Section 13 of RA 9335 provides:

SEC. 13. Separability Clause. – If any provision of this Act is declared invalid by a competent court, the remainder of this Act or any provis

not affected by such declaration of invalidity shall remain in force and effect.

In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:

The general rule is that where part of a statute is void as repugnant to the Constitution, while another part is valid, the valid portio

separable from the invalid, may stand and be enforced. The presence of a separability clause in a statute creates the presumption that

legislature intended separability, rather than complete nullity of the statute. To justify this result, the valid portion must be so

independent of the invalid portion that it is fair to presume that the legislature would have enacted it by itself if it had supposed that it co

not constitutionally enact the other. Enough must remain to make a complete, intelligible and valid statute, which carries out the legisla

intent. x x x

The exception to the general rule is that when the parts of a statute are so mutually dependent and connected, as conditi

considerations, inducements, or compensations for each other, as to warrant a belief that the legislature intended them as a whole,

nullity of one part will vitiate the rest. In making the parts of the statute dependent, conditional, or connected with one another,







On January 18, 2005, the Office of the Solicitor General (OSG) filed its manifestation and motion, in lieu of comment, praying that

assailed decision be set aside. The OSG argued that Petitioner’s termination was illegal. The notice of termination did not cite the spe

instances indicating Petitioner’s alleged unsatisfactory conduct or want of capacity. It was only on July 29, 2003, or almos t two years a

Petitioner’s dismissal on August 13, 2001 that his former Depar tment Heads, Engr. Magsino and Engr. Masongsong, submitted

assessment and evaluation report to Mayor Bendaña, which the latter belatedly solicited when the Petitioner appealed to the CSC Regi

Office. Hence, the circumstances behind Petitioner’s dismissal became questionable.

The OSG also found no evidence at the CSC Regional Office level that Petitioner was informed of his alleged poor performance. There wa

evidence that Petitioner was furnished copies of 1) Mayor Bendaña’s letter, dated July 29, 2003, addressed to CSC Regional Office pray

that Petitioner’s termination be sustained; and 2) the performance evaluation report, dated July 29, 2003, prepared by Engr. Magsino

Engr. Masongsong. The OSG claimed that Petitioner was denied due process because his dismissal took effect a day after he receivednotice of termination. No hearing was conducted to give Petitioner the opportunity to refute the alleged causes of his dismissal. The

agreed with Petitioner’s claim that there was in sufficient time for Mayor Bendaña to determine his fitness or unfitness for the position

[Emphasis supplied]

Thus, the fallo of the CA Decision[4] reads:

“WHEREFORE, the petition is Granted. The Civil Service Commission Regional Office No. 4’s Decision, dated July 20, 2004 is hereby Set As

Accordingly, Petitioner is ORDERED REINSTATED with full payment of backwages and other monetary benefits. This case is her

REMANDED to the Civil Service Commission for reception of such evidence necessary for purposes of determining the amount of backwa

and other monetary benefits to which Petitioner is entitled.

SO ORDERED.”

THE ISSUES

In this petition, the Civil Service Commission submits the following for our consideration:

“I. The dropping of respondent from the rolls of the local government unit of Lemery, Batangas was in accord with Civil Service Law, r

and jurisprudence.

II. The respondent resorted to a wrong mode of appeal and violated the rule on exhaustion of administrative remedies and the corol

doctrine of primary jurisdiction.”

The principal issue, therefore, is whether or not the termination of Magnaye was in accordance with the pertinent laws and the rules.

The eligibility of respondent Magnaye has not been put in issue.

THE COURT’S RULING

The Court upholds the decision of the Court of Appeals.

The CSC, in arguing that Magnaye’s termination was in accord with the Civil Service law, cited Section 4(a), Rule II of the 1 998 CSC OmnRules on Appointments and Other Personnel Actions which provides that:

Sec. 4. Nature of appointment. The nature of appointment shall be as follows:

a. Original – refers to the initial entry into the career service of persons who meet all the requirements of the position. xxx





x x x.

X x x the only difference between regular and probationary employees from the perspective of due process is that the latter's termina

can be based on the wider ground of failure to comply with standards made known to them when they became probationary employe es.

The constitutional and statutory guarantee of security of tenure is extended to both those in the career and non-career service positions,

the cause under which an employee may be removed or suspended must naturally have some relation to the character or fitness of

officer or employee, for the discharge of the functions of his office, or expiration of the project for which the employment was extended.

Further, well-entrenched is the rule on security of tenure that such an appointment is issued and the moment the appointee assum

position in the civil service under a completed appointment, he acquires a legal, not merely equitable right (to the position), whic

protected not only by statute, but also by the Constitution [Article IX-B, Section 2, paragraph (3)] and cannot be taken away from him ei

by revocation of the appointment, or by removal, except for cause, and with previous notice and hearing.[10]

While the CSC contends that a probationary employee does not enjoy security of tenure, its Omnibus Rules recognizes that such an emplo

cannot be terminated except for cause. Note that in the Omnibus Rules it cited,[11] a decision or order dropping a probationer from

service for unsatisfactory conduct or want of capacity anytime before the expiration of the probationary period “is appealabl e to

Commission.” This can only mean that a probationary employee cannot be fired at will.

Notably, jurisprudence has it that the right to security of tenure is unavailing in certain instances. In Orcullo Jr. v. Civil Ser

Commission,[12] it was ruled that the right is not available to those employees whose appointments are contractual and co-terminou

nature. Such employment is characterized by “a tenure which is limited to a period specified by law, or that which is coterminous with

appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment

made.”*13+ In Amores M.D. v. Civil Service Commission,*14+ it was held that a civil executive service appointee who meets al l

requirements for the position, except only the appropriate civil service eligibility, holds the office in a temporary capacity and is, thus, entitled to a security of tenure enjoyed by permanent appointees.

Clearly, Magnaye’s appointment is entirely dif ferent from those situations. From the records, his appointment was never classified as

terminous or contractual. Neither was his eligibility as a Utility Worker I challenged by anyone.

In support of its position that an appointee cannot lawfully invoke the right to a security of tenure during the probationary period, petitio

CSC banked on the case of Lucero v. Court of Appeals and Philippine National Bank.[15] This case is, however, not applicable becaus

refers to a private entity where the rules of employment are not exactly similar to those in the government service.

Mayor Bendaña dismissed Magnaye for lack of capacity and unsatisfactory conduct. Section 26, paragraph 1, Chapter 5, Book V, Title I-

the Revised Administrative Code of 1987 states:

(1) Appointment through certification.— An appointment through certification to a position in the civil service, except as herein otherw

provided, shall be issued to a person who has been selected from a list of qualified persons certified by the Commission from an appropr

register of eligibles, and who meets all the other requirements of the position.

All such persons must serve a probationary period of six months following their original appointment and shall undergo a thoro

character investigation in order to acquire permanent civil service status. A probationer may be dropped from the service for unsatisfact

conduct or want of capacity any time before the expiration of the probationary period: Provided, That such action is appealable to

Commission.





inefficiency and incompetence in the performance of official duties which, as earlier mentioned, are grounds for dismissing a governm

official or employee from the service.

But inefficiency or incompetence can only be determined after the passage of sufficient time, hence, the probationary period of six

months for the respondents. Indeed, to be able to gauge whether a subordinate is inefficient or incompetent requires enough time on

part of his immediate superior within which to observe his performance. This condition, however, was not observed in this case. x

[Emphasis and underscoring supplied]

The CSC is the central personnel agency of the government exercising quasi- judicial functions.*22+ “In cases filed before administrativ

quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence w

a reasonable mi nd might accept as adequate to justify a conclusion.”*23+ The standard of substantial evidence is satisfied when, onbasis of the evidence on record, there is reasonable ground to believe that the person terminated was evidently wanting in capacity and

unsatisfactory conduct. In this case, the evidence against Magnaye was woefully inadequate.

Moreover, Magnaye was denied due process. We ruled in Tria v. Chairman Patricia Sto. Tomas[24] that the prohibition in Article IX (B)

(3) of the Constitution against dismissal of a civil service officer or employee "except for cause provided by law" is a guaranty of b

procedural and substantive due process. Procedural due process requires that the dismissal comes only after notice and heari ng,[25] w

substantive due process requires that the dismissal be “for cause.”*26+

Magnaye was denied procedural due process when he received his notice of termination only a day before he was dismissed from

service. Evidently, he was effectively deprived of the opportunity to defend himself from the charge that he lacked the capacity to do

work and that his conduct was unsatisfactory. As well, during his appeal to the CSCRO-IV, he was not furnished with the submission

Mayor Bendaña that he could have opposed. He was also denied substantive due process because he was dismissed from the ser

without a valid cause for lack of any factual or legal basis for his want of capacity and unsatisfactory conduct.

Thus, we reject petitioner’s argument that the CA erred when it acted upon the erroneous remedy availed of by respondent when he file

petition for review considering that the assailed decision is not in the nature of “awards, judgments, final orders or resolutions o

authorized by any quasi-judicial agency in the exercise of its quasi- judicial functions” as prescribed under Rule 43 of the Rules of Court. W

Sections 71 and 72 of Rule V (B) of the Uniform Rules on Administrative Cases in the Civil

Service [27] provide for t he remedy of an appeal from decisions of its regional offices to the Commission proper, Magnaye’s petition to

CA comes under the exceptions to the doctrine of exhaustion of administrative remedies. The CA correctly cited Republic v. Lacap,[28] wh

a violation of due process is listed to be among the noted exceptions to the rule. As discussed above, Magnaye’s dismissal was tainted irregularity because the notice given to him comes short of the notice contemplated by law and jurisprudence. The CA correctly exerc

jurisdiction over this case where standards of due process had been patently breached.

Having been illegally dismissed, Magnaye should be reinstated to his former position without loss of seniority and paid backwages and o

monetary benefits from the time of his dismissal up to the time of his reinstatement. In our decision in Civil Service Commissio

Gentallan,[29] we ruled that for reasons of justice and fairness, an illegally dismissed government employee who is later ordered reinsta

is entitled to backwages and other monetary benefits from the time of his illegal dismissal until his reinstatement because he is conside

as not having left his office.

WHEREFORE, the petition is DENIED. The February 20, 2008 Decision of the Court of Appeals and its June 11, 2008 Resolution denying

motion for reconsideration in CA-G.R. No. SP No. 85508 are AFFIRMED.

SO ORDERED.

G.R. No. L-13932, De Los Santos et al. v. Yatco et al., 106 Phil. 745

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

December 24, 1959





On April 28, 1958, defendant manifested in writing that he conferred with plaintiff Pacita V. de los Santos on April 22, 1958, that he m

known to her "that he is ready to pay and is offering her the sum of P13,563, his balance indebtedness to her, in accordance with their ve

agreement on December 9, 1957 . . . Plaintiff Pacita V. de los Santos brushed aside defendant's offer of payment, and instead, stated

she will abide by their said agreement only if she will be paid P14,500.00. She added that she is demanding now, P14,500.00 after she

forfeited the P1,000.00 already paid by defendant to her, and that she can not allow the P1,000.00 be deducted from the remai ning bala

of P14,563.00."

The judge called the parties to a pre-trial or conference on June 2, 1958. Noting defendant's insistance on non-violation of the comprom

agreement, he set the case for hearing on June 3, 1958. On said date according to the Judge, Atty. Bernardo (for plaintiffs) refused to att

the hearing, and defendant proved the material allegations of his urgent motion as hereinabove set forth.

Wherefore, convinced that there was no justification or the issuance of the writ of execution, the Hon. Nicasio Yatco, Judge, quashed it by

order of June 4, 1958.

Hence this petition for certiorari to revoke that particular order, which petition must necessarily be based on lack of jurisdiction or abuse

discretion.[[1]]

There is no question in this country that a judge has jurisdiction to quash a writ of execution issued by him, particularly where it

improvidently issued. (Dimayuga vs. Raymundo, 76 Phil., 143, 42 Off. Gaz., 2121). See also Garcia vs. Muñoz, 103 Phil., 628.

Was there abuse of discretion? We think not. In the first place, there being opposition on the part of the defendant, who alleged and pro

a subsequent verbal agreement amending the compromise, execution could not validly be decreed without a hearing. As we said in Co

Lucero, 100 Phil., 160, 52 Off. Gaz., (17), 7255, when under similar circumstances a breach of the compromise agreement is alleged, "th

arises a cause of action which must be passed upon by the court requiring a hearing to determine whether such breach had really ta

place."[[2]]

In the second place, the allegations proved by Mendoñez about their verbal agreement, his having secured a loan from the GSIS and

consequent ability to discharge his obligation seemingly justified the court's refusal to eject defendant from the premises (on execution)

the consequent forfeiture in favor of the plaintiffs of more than P12,000.00 already paid by defendant as previous installments of

purchase price,[[3]] not to mention the of defendants use of the house and theatre erected that parcel of land. Upon the othe r hand,

respondent judge's action caused no irreparable or undue harm plaintiffs, because the latter still have the judgment Mendoñez. N

particularly that their unpaid continuous to earn 10% interest.

Wherefore, as the court had jurisdiction and has committed not grave abuse of discretion, the writ of certiorari may not be issued.

Petition denied, with costs against petitioners.

Paras, C.J., Padilla, Montemayor, Bautista Angelo, Labrador, Endencia, Barrera and Gutierrez David, JJ., concur.

G.R. No. 126183 March 25, 1999LUZVIMINDA DE LA CRUZ, MERCY DE LEON, TERESITA EUGENIO, CORAZON GOMEZ, ELENA GUEVARRA, ROSALINA JINGCO, LOIDA IGNACand EMERITA PIZARRO, petitionvs.COURT OF APPEALS, CIVIL SERVICE COMMISSION and THE SECRETARY OF THE DEPARTMENT OF EDUCATION, CULTURE ASPORTS, respondents.G.R. No. 129221 March 25, 1999ROLANDO ALURA,CLARA ALVAREZ, POFIRIO AUSTRIA, VICENTE CARRANZA, ELMER DALIDA, ROSALINDA DALIDA, NELSON DUL-DULAO, POCONG, ENRICO RAYMUNDO, MARGIE SERRANO, SUSAN SIERTE, JESSIE VILLANUEVA, NORBERTO ABAD, MARIA ACEJO, ELVIRA ALA

SUSANA BANUA, CAROLINA BULACLAC, DANILO CABALLES, ECHELITA CALMA, JESUSA CARAIG, CECILIA CASTILLO, ANACLETA CORRAGLORIA CUEVAS, CONCORDIA DE GUZMAN, ROWENA DEL ROSARIO, MATILDE DINGLE, ROSARIO DULDULAO, CONRADA ENDRLUZVIMINDA ESPINO, VIRGILIO ESTRADA, DAMIAN FETIZANAN, DEMOCRITO FLORES, ROSALIA GARCENILA, CORAZON GONZALES, VIOLGUANIZO, SURENA GUNDRAN, HILARIA HALAGO, NERISSA IGNACIO, LEONOR LACERNA, TERESITA LAGUMBAY, TERESTTA LAURENCARMELITA LEGION, LEONARDO LIMBO, EDGARDO LIWANAG, ERLINA MAGALLANES, NEDA MAGSULIT, AMELITA MANGAHAS, GMORRIS, HIPOLITA NATIVIDAD, NATIVIDAD NEPOMUCENO, ROSALINA NOCUM, MAXIMA NON, ESTELA PALILEO, ANA PALMA, GLICEPANGINDIAN, MA. LUZ PEREZ, LYDIA QUINTANA, LORENZA REAL, BERNARDITA RINO, CELIA RONQUILLO, GLORIA SALVADOR, CATHERSAN AGUSTIN, LIBERTY SISON, ERLINDA SOLAMO, ALMA TALAMANTE, GINA TIMBAS, BENJAMIN VALBUENA, DONATO VALDEMOROSEMARIE VEDEJA, RIZALINA VICTORIO, MYRNA VILLAMIN, FLORENDA VILLAREAL, WILSON PEREZ, ENRICO PILANDE, JOSEPHPARMISANO, FELIPE ALACAR, JOSE FETAL ALVERO, JR., MYRNA BARLISO, CAROLINA COLIGADO, ROLANDO CERBO and LOCLEMENCIA, petitioners,vs.

COURT OF APPEALS, CIVIL SERVICE COMMISSION, and SECRETARY OF EDUCATION CULTURE AND SPORTS, respondents.



BELLOSILLO, J.: These consolidated petitions

1 are among several petitions filed with this Court arising from the much-publicized public school teach

mass actions of September/October 1990.Petitioners are public school teachers from various schools in Metro Manila who were simultaneously charged, preventively suspendand eventually dismissed in October 1990 by then Secretary Isidro D. Cariño of the Department of Education, Culture and Sports (DECSdecisions issued by him which uniformly read —

This is a mutu-propio administrative complaint separately filed by the Secretary of Education, Culture and Sports agathe following public school teachers . . . . based on the report submitted by their respective school principals wherewas alleged that the above-named teachers participated in the mass action/illegal strike in Sept. 19-21, 1990

subsequently defied the return-to-work order dated September 17, 1990 issued by this Office, which acts constitute gmisconduct, gross neglect of duty, gross violation of Civil Service Law, Rules and Regulations and reasonable ofregulations, refusal to perform official duty, gross insubordination conduct prejudicial to the best interest of the servand absence without official leave (AWOL), in violation of Presidential Decree 807, otherwise known as the Civil SerDecree of the Philippines.Required to explain within a period of not less than 72 hours but not more than 5 days from receipt of the complarespondents failed to submit the required answer within the given time up to the present, and despite the denial of trequest for extension of 30 days within which to submit their answers dated September 25, 1990 filed by their counAtty. Gregorio Fabros, in a letter of this Office to him dated Septmber 28, 1990, respondents failed to submit the sawhich failure, is considered a waiver on their part of their right to answer the charges and to controvert the same.Wherefore, after a careful evaluation of the records, this Office finds the respondents guilty as charged.In accordance with Memorandum Circular 30 s. 1989 of the Civil Service Commission on Guidelines in the ApplicatioPenalty in Administrative Cases, the herein respondents are dismissed from Office effective immediately.

The decisions dismissing petitioners were immediately implemented.Petitioners appealed to the Merit Systems Protection Board (MSPB) and then to the Civil Service Commission (CSC). In 1993 the CSC foupetitioners guilty of "conduct prejudicial to the best interest of the service" for having participated in the mass actions and imposed uthem the reduced penalty of six (6) months' suspension. However, in view of the length of time that petitioners had been out of the serby reason of the immediate implementation of the dismissal orders of Secretary Cariño, the CSC likewise ordered petitioners' automreinstatement in the service without back wages.Petitioners were unhappy with the CSC decision. They initially filed petitions for certiorari with this Court, docketed as G.R. 111998,

2 114435-5506,

3 and 116312-19,

4 which were all referred to the Court of Appeals pursuant to Revised Administrative Circular

1-955 and there re-docketed as CA-G.R. SP No. 37620, CA-G.R. SP No. 37619 and CA-G.R. SP Nos. 37784, 37808-37014, respectively.

On 29 November 1995 the Special Third Division of the Court of Appeals6 rendered a joint decision in CA-G.R. SP Nos. 37619-20 dismis

the petitions for lack of merit.7 The appellate court ruled that the questioned resolutions of the Civil Service Commission finding petitio

guilty of conduct prejudicial to the best interest of the service were based on reasonable and justifiable grounds; that petitioners' perce

grievances were no excuse for them not to conduct classes and defy the return-to-work order issued by their superiors; that the immedexecution of the dismissal orders of Secretary Cariño was sanctioned by Sec. 47, par. (2), of the Administrative Code of 1987 (E.O. No. 2as well as Sec. 37, par. (b), Art. IX of PD No. 807,

8 and Sec. 32, Rule XIV of the Omnibus Rules Implementing Book V of E. O. No. 292. T

motion for reconsideration having been denied on 15 May 1997,9 petitioners then appealed by certiorari to this Court on 26 June 19

docketed as G.R. No. 129221.Meanwhile, on 24 April 1998 the Tenth Division of the Court Appeals

10 rendered a joint decision in CA-G.R. SP No. 37784 and Nos. 37808-14 likewise dismissing the petitions for lack of merit.

11

appellate court rejected petitioners' contention that they should not have been penalized for participating in the September/October 1mass actions because they were merely exercising their constitutional right to free assembly. In so ruling the Court of Appeals cited Ma

Public School Teachers Association v . Laguio, Jr .12

wherein this Court ruled that the public school teachers' mass actionsSeptember/October 1990 were "to all intents and purposes a strike . . . constitut[ing] a concealed and unauthorized stoppage ofabsence from, work which it was the teachers' duty to perform, undertaken for essentially economic reasons." Petitioners' contention.tsecretary Cariño's decision to dismiss them was not supported by evidence was likewise rejected in view of petitioners' admissions and

failure to refute the factual finding that petitioners actually joined the mass actions based on the report of absences submitted by threspective school principals. Their motion for reconsideration having been denied in the resolution of 20 August 1996,

13 petitioners t

filed a petition for review on certiorari with this Court on 1 October 1996, docketed as G.R. No. 126183.By resolution of 7 October 1997 we granted petitioners' motion for the consolidation of G.R. Nos. 126183 and 129221 involving as theycommon questions of fact and law.Petitioners contend that the Court of Appeals grievously erred in affirming the CSC resolutions finding them guilty of conduct prejudiciathe best interest of the service when their only "offense" was to exercise their constitutional right to peaceably assemble and petitiongovernment for redress of their grievances. Moreover petitioners insist that the mass actions of September/October 1990 were "strikes" as there was no actual disruption of classes. Petitioners therefore ask for exoneration or, in the alternative, award of back wafor the period of three (3) years when they were not allowed to work while awaiting resolution of their appeals by the MSPB and deducting the period of six (6) months' suspension eventually meted them.The petitions must be denied in view of previous rulings of this Court already settling all the issues raised by petitioners. It is a v

desirable and necessary judicial practice that when a court has laid down a principle of law as applicable to a certain state of facts, it



adhere to that principle and apply it to all future cases where the facts are substantially the same.14

Stare decisis et non quieta mov

Stand by the decisions and disturb not what is settled.15

As early as 18 December 1990 we have categorically ruled in the consolidated cases of Manila Public School Teachers Associatio

Laguio Jr .,16

and Alliance of Concerned Teachers v . Hon. Isidro Cariño 17

that the mass actions of September/October 1990 staged by MManila public school teachers "amounted to a strike in every sense of the term, constituting as they did, a concerted and unauthoristoppage of or absence from work which it was said teachers' sworn duty to perform, carried out for essentially economic reasons —

protest and pressure the Government to correct what, among other grievances, the strikers perceived to be the unjust or prejudmplementation of the salary standardization law insofar as they were concerned, the non-payment or delay in payment of various fri

benefits and allowances to which they were entitled, and the imposition of additional teaching loads and longer teaching houn Rolando Gan v . Civil Service Commission,

18 we denied the claim that the teachers were thereby denied their rights to peaceably assem

and petition the government for redress of grievances reasoning that this constitutional liberty to be upheld, like any other liberty, musexercised within reasonable limits so as not to prejudice the public welfare. But the public school teachers in the case of the 1990 mactions did not exercise their constitutional rights within reasonable limits. On the contrary, they committed acts prejudicial to the nterest of the service by staging the mass protests on regular school days, abandoning their classes and refusing to go back even after t

had been ordered to do so. Had the teachers availed of their free time — recess, after classes, weekends or holidays — to dramatize tgrievances and to dialogue with the proper authorities within the bounds of law, no one — not the DECS, the CSC or even the SupreCourt — could have held them liable for their participation in the mass actions.

19

With respect to our ruling in PBM Employees Organization v . Philippine Blooming Mills Co., Inc.,20

invoked by petitioners, we have likewalready ruled in the Rolando Gan case

21 that the PBM ruling — that the rights of free expression and assembly could not be lig

disregarded as they occupy a preferred position in the hierarchy of civil liberties — was not applicable to defend the validity of the 1mass actions because what were pitted therein against the rights of free expression and of assembly were inferior property rights whilehigher consideration involved in the case of the striking teachers was the education of the youth which must, at the very least, be equawith the freedom of assembly and to petition the government for redress of grievances.

22

We affirmed the foregoing rulings in Bagana v . Court of Appeals 23 by denying a similar petition filed by another group of teachers wparticipated in the 1990 mass actions but who claimed to have been merely exercising their constitutional right to free assembly. We hn Bagana that the Court of Appeals committed no reversible error in affirming the CSC resolutions finding the teachers guilty of cond

prejudicial to the best interest of the service and imposing penalties of six (6) months' suspension without pay. In Bangalisan v. Cour

Appeals 24

we added that the persistent refusal of the striking teachers to call the mass actions by the conventional term "strike" diderase the true nature of the mass actions as unauthorized stoppages of work the purpose of which was to obtain a favorable responsethe teachers' economic grievances. We again stressed that the teachers were penalized not because they exercised their right to peaceassemble but because of the manner by which such right was exercised, i .e., going on unauthorized and unilateral absences thus disrupclasses in various schools in Metro Manila which produced adverse effects upon the students for whose education the teachers wresponsible. But herein petitioners contend that classes were not actually disrupted because substitute teachers were immediaappointed by Secretary Cariño. Besides being a purely factual assertion which this Court cannot take cognizance of in a petition for revthe fact that the prompt remedial action taken by Secretary Cariño might have partially deflected the adverse effects of the mass prot

did not erase the administrative liability of petitioners for the intended consequences thereof which were the very reason why such proremedial action became necessary.Considering the foregoing, we find that respondent Court of Appeals did not err in sustaining the CSC resolutions finding petitioners gof conduct prejudicial to the best interest of the service.As an alternative prayer, petitioners ask that in the event their exoneration is not decreed they be awarded back wages for the period wthey were not allowed to work by reason of the supposed unjustified immediate implementation of the dismissal orders of Secretary Cawhile awaiting resolution of their appeals by the MSPB and CSC.The issue of whether back wages may be awarded to teachers ordered reinstated to the service after the dismissal orders of SecreCariño were commuted by the CSC to six (6) months' suspension is already settled.n Bangalisan v . Court of Appeals

25 we resolved the issue in the negative on the ground that the teachers were neither exonerated

unjustifiably suspended, two (2) circumstances necessary for the grant of back wages in administrative disciplinary cases. Like hepetitioners, those in Bangalisan were also teachers who participated in the 1990 mass actions for which they were dismissed by SecretCariño but ordered merely suspended for six (6) months by the Civil Service Commission. On a plea that the immediate implementation

the dismissal orders of Secretary Cariño was unjustified, thus warranting an award of back wages the Court said — As to the immediate execution of the decision of the Secretary against petitioners, the same is authorized by Sectionparagraph (2), of Executive Order No. 292, thus: "The Secretaries and heads of agencies and instrumentalities, provincities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action agaofficers and employees under their jurisdiction. Their decision shall be final in case the penalty imposed is suspensionnot more than thirty days or fine in an amount not exceeding thirty days' salary. In case the decision rendered by a buror office is appealable to the Commission, the same shall be executory except when the penalty is removal, in which cthe same shall be executory only after confirmation by the Secretary concerned.

And since it was already the final dismissal orders of Secretary Cariño which were being carried out, immediate implementateven pending appeal was clearly sanctioned by the aforequoted provision of the Administrative Code of 1987.

26 Hence, b

legal, the immediate execution of the dismissal orders could not be considered unjustified.The cases cited by petitioners to support their prayer for back salaries, namely, Abellera v . City of Baguio

27 andBautista v . Peralta

28 b

cases which involved the unjustified immediate execution of the dismissal orders of the then Civil Service Commissioner pending appea



the Civil Service Board of Appeals are therefore not applicable to justify petitioners' prayer. Neither could petitioners be considered to hbeen exonerated from the charges levelled against them by Secretary Cariño from the mere fact that they were found guilty onlconduct prejudicial to the best interest of the service by the CSC. It must be remembered that Secretary Cariño charged petitioners wgrave misconduct, gross neglect of duty, gross violation of civil service law, rules and regulations, etc., for having participated in the 1llegal mass actions. On appeal the CSC while affirming the factual finding that petitioners indeed participated in the mass the fact

finding that petitioners indeed participated in the mass actions found them liable only for conduct prejudicial to the best interest ofservice. Clearly the CSC decision did not proceed from a finding that petitioners did not commit the acts complained of. Having been fouto have actually participated in the illegal mass actions although found answerable for a lesser offense, petitioners could not be consideas fully innocent of the charges against them.

29 Being found liable for a lesser offense is not equivalent to exoneration.

30

Thus in Bangalisan we denied the claim for back wages of those teachers who were found to have actually participated in the 1990 m

actions but granted the claim of one Rodolfo Mariano who was absent only because he attended the wake and interment of grandmother. In Jacinto v . Court of Appeals 31

we again denied the claim for back wages of teachers found to have given cause for tsuspension i .e., their unjustified abandonment of classes to the prejudice of their students but granted the claim of Merlinda Jacinto wwas absent because of illness.Petitioners do not deny, nay they even admit, having participated in the 1990 mass actions. Thus having given cause for their supenstheir prayer for backwages must be denied conformably with settled rulings of this Court.WHEREFORE, the petitions are DENIED and the assailed Decisions of the Court of Appeals dated 29 November 1995 and 24 April 1996AFFIRMED. No costs.SO ORDERED.LEAH M. NAZARENO, CARLO M. CUAL, ROGELIO B. CLAMONTE, FLORECITA M. LLOSA, ROGELIO S. VILLARUBIA, RICARDO M. GONZALES,

ROSSEL MARIE

G. GUTIERREZ, NICANOR F. VILLAROSA, JR., MARIE SUE F. CUAL, MIRAMICHI MAJELLA B. MARIOT, ALMA F. RAMIREZ, ANTOLIN D. ZAM

JR., MARIO S. ALILING, TEODULO SALVORO, JR., PHILIP JANSON ALTAMARINO, ANTONIETTA PADURA, ADOLFO R. CORNELIA, IAN R

PATULA, WILLIAM TANOY, VICTOR ARBAS, JEANITH CUAL, BRAULIO SAYSON, DAWN M. VILLAROSA, AGUSTIN A. RENDOQUE, ENRIQU

TUMONGHA, LIONEL P. BANOGON, ROSALITO VERGANTINOS, MARIO T. CUAL, JR., ELAINE MAY TUMONGHA, NORMAN F. VILLARO

RICARDO C. PATULA, RACHEL BANAGUA, RODOLFO A. CALUGCUGAN, PERGENTINO CUAL, BERNARD J. OZOA, ROGER JOHN AROM

CHERYL E. NOCETE, MARIVIC SANCHEZ, CRISPIN DURAN, REBECO LINGCONG, ANNA LEE ESTRABELA, MELCHOR B. MAQUILING, R

MOLAS, OSCAR KINIKITO, DARWIN B. CONEJOS, ROMEL CUAL, ROQUETA AMOR, DISODADO LAJATO, PAUL PINO, LITO PINERO, RODU

ZOSA, JR. and JORGE ARBOLADO,

Petitioners,

- versus -

CITY OF DUMAGUETE, represented by CITY MAYOR AGUSTIN PERDICES, DOMINADOR DUMALAG, JR., ERLINDA TUMONGHA, JOSEPH

MAE FLORES AND ARACELI CAMPOS,

Respondents.

G.R. No. 181559

Present:

PUNO, C.J.,

QUISUMBING,*

YNARES-SANTIAGO,

CARPIO,

CORONA,

CARPIO MORALES,

CHICO-NAZARIO,**

VELASCO, JR.,

NACHURA,



LEONARDO-DE CASTRO,

BRION,

PERALTA,

BERSAMIN,

DEL CASTILLO, and

ABAD, JJ.

Promulgated:

October 2, 2009

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

D E C I S I O N

DEL CASTILLO, J.:

The integrity and reliability of our civil service is, perhaps, never more sorely tested than in the impassioned demagoguery of electio

Amidst the struggle of personalities, ideologies, and platforms, the vigor and resilience of a professional civil service can only be preser

where our laws ensure that partisanship plays no part in the appointing process. Consequently, we affirm the validity of a regulation iss

by the Civil Service Commission (CSC or the Commission) intended to ensure that appointments and promotions in the civil service are m

solely on the basis of qualifications, instead of political loyalties or patronage.

This Petition for Review on Certiorari filed under Rule 45 of the Rules of Court seeks to reverse the Decision[1] of the Court of App

dated August 28, 2007 and its Resolution[2] dated January 11, 2008 in CA-G.R. CEB-SP No. 00665. The case stemmed from CSC Field Off

invalidation of petitioners’ appointments as employees of the City of Dumaguete, w hich was affirmed by the CSC Regional Office, by

Commission en banc and by the Court of Appeals.

LEGAL AND FACTUAL BACKGROUNDS

Accreditation of Dumaguete City by the Civil Service Commission

On October 25, 1999, pursuant to the Commission’s Accreditation Program, the CSC issued Resolution No. 992411,*3+ which granthe City Government of Dumaguete the authority to take final action on all its appointments, subject to, inter alia, the following condition

1. That the exercise of said authority shall be subject to Civil Service Law, rules and regulations and within the limits and restrictions of

implementing guidelines of the CSC Accreditation Program as amended (MC No. 27, s. 1994);

x x x x

5. That appointments issued under this authority shall be subject to monthly monitoring by the [Civil Service Field Office] CSFO concerne



x x x x

9. That appointments found in the course of monthly monitoring to have been issued and acted upon in violation of pertinent ru

standards, and regulations shall immediately be invalidated by the Civil Service Regional Office (CSRO), upon recommendation by the CSF

Appointments made by outgoing Mayor Remollo

Then Dumaguete City Mayor Felipe Antonio B. Remollo sought re-election in the May 14, 2001 elections, but lost to respondent Ma

Agustin R. Perdices. Thereafter, on June 5, 7, and 11, 2001, outgoing Mayor Remollo promoted 15 city hall employees, and regular

another 74 city hall employees, including the herein 52 petitioners.

On July 2, 2001, Mayor Perdices publicly announced at the flag raising ceremony at the Dumaguete City Hall grounds that he would

honor the appointments made by former Mayor Remollo. On the same day, he instructed the City Administrator, respondent Domina

Dumalag, Jr., to direct respondent City Assistant Treasurer Erlinda C. Tumongha (now deceased), to refrain from making any c

disbursements for payments of petitioners' salary differentials based on their new positions.

The Petition for Mandamus before the Regional Trial Court of Dumaguete City

Thus, on August 1, 2001, petitioners filed a Petition for Mandamus with Injunction and Damages with Prayer for a Tempor

Restraining Order against the City of Dumaguete, represented by respondent city mayor Perdices and city officers Dumalag, Tumong

Josephine Mae Flores, and Araceli Campos. The petition was docketed as Civil Case No. 13013, and raffled to Branch 41 of the Regional T

Court of Dumaguete City. Petitioners sought the issuance of a writ of preliminary injunction to enjoin respondents from taking any actio

issuing any orders nullifying their appointments.

In a Decision*4+ dated March 27, 2007, the Regional Trial Court dismissed the petition; petitioners’ Motion for Reconsideration was

denied in an Order[5] dated April 26, 2007. The issues involved in Civil Case No. 13013 have twice been elevated to and eventually reso

by the Court in G.R. Nos. 177795[6] and 168484.[7]

Revocation of Appointments by the Civil Service Commission Field Office

Relative to this main case, on August 1, 2001, the CSC Field Office in Dumaguete City, through Director II Fabio R. Abucejo, revoked

invalidated the appointments of the petitioners (the August 1, 2001 Order) based of the following findings:

1. There were a total of 15 promotional appointments and 74 original appointments issued as reflected in the submitted [Repor

Personnel Actions] ROPA for the month of June 2001.

2. There was only one (1) en banc meeting of the City Personnel Selection Board (PSB) held on 5 June 2001 to consider the numbe

appointments thus issued and there was no other call for a PSB meeting certified to by the City [Human Resource Management Offi

HRMO.

3. There were no minutes available to show the deliberations of the PSB of the 89 appointments listed in the ROPA as certified by the

HRMO.

4. There were no PSB statements certifying that there was actual screening and evaluation done on all candidates for each position.

5. The appointing officer of the 89 appointments was an outgoing local official who lost during the 14 May 2001 elections for City Mayo

Dumaguete City.

6. The 89 appointments were all issued after the elections and when the new city mayor was about to assume office.[8]

Director Abucejo invalidated the appointments as the same were done in violation of CSC Resolution No. 010988 dated June 4, 20

the pertinent portions of which provide:

WHEREAS, the May 14, 2001 national and local elections have just concluded and the Commission anticipates controversies that w

arise involving appointments issued by outgoing local chief executives immediately before or after the elections;

WHEREAS, the Commission observed the tendency of some outgoing local chief executives to issue appointments even after

elections, especially when their successors have already been proclaimed.





7-Jun-01

2. Carlo M. Cual

Legislative Staff Officer I

Legislative Staff Officer III

5-Jun-01

3. Rogelio B. Clamonte

Public Services

Supply Officer IV

5-Jun-01

4. Florecita Llosa

Supply Officer IRecords Officer II

11-Jun-01

5. Rogelio S. Villarubia

Agriculturist II

Agriculturist III

5-Jun-01

6. Rossel Marie G. Gutierrez

Casual/Plantilla

Supervising Environmental Management Specialist

5-Jun-01

7. Nicanor F. Villarosa, Jr.

Casual/Plantilla

Dentist II

5-Jun-01

8. Marie Sue Cual

Casual/Plantilla

Social Welfare Officer I

7-Jun-01

9. Miramichi Majella B. Mariot

Casual/Plantilla

Records Officer II

7-Jun-01

10. Alma F. Ramirez

Casual/Plantilla

Clerk IV7-Jun-01

11. Antolin D. Zamar, Jr.

Casual/Plantilla

Metro Aide II

11-Jun-01

12. Mario S. Aliling

Casual/Plantilla

Driver II

5-Jun-01

13. Teodulo Salvoro, Jr.

Casual/Plantilla

Metro Aide II

5-Jun-0114. Philip Janson Altamarino

Casual/Plantilla

Clerk I

5-Jun-01

15. Antonieta Padura

Casual/Plantilla

Metro Aide II

11-Jun-01

16. Adolfo Cornelia

Casual/Plantilla

Metro Aide II

11-Jun-01



17. Ian Ryan Patula

Casual/Plantilla

Metro Aide II

7-Jun-01

18. William Tanoy

Casual/Plantilla

Metro Aide II

5-Jun-01

19. Victor Arbas

Casual/Plantilla

Public Services Foreman7-Jun-01

20. Jeanith Cual

Casual/Plantilla

Utility Worker II

5-Jun-01

21. Braulio Sayson

Casual/Plantilla

Mechanical Plant Supervisor

7-Jun-01

22. Dawn Villarosa

Casual/Plantilla

Clerk I

7-Jun-01

23. Agustin Rendoque

Casual/Plantilla

Utility Worker I

7-Jun-01

24. Enriqueta Tumongha

Casual/Plantilla

Utility Worker II

5-Jun-01

25. Lionel Banogon

Casual/Plantilla

Clerk II

5-Jun-0126. Rosalito Vergantinos

Casual/Plantilla

Pest Control Worker II

5-Jun-01

27. Mario Cual, Jr.

Casual/Plantilla

Utility Foreman

7-Jun-01

28. Elaine Tumongha

Casual/Plantilla

Registration Officer I

11-Jun-01

29. Norman VillarosaCasual/Plantilla

Utility Worker I

5-Jun-01

30. Ricardo C. Patula

Casual/Plantilla

Revenue Collection Clerk I

5-Jun-01

31. Rachel Banagua

Casual/Plantilla

Utility Worker I

5-Jun-01

32. Rodolfo Calugcugan





Pest Control Worker II

5-Jun-01

48. Paul Pino

Job Order

Utility Worker II

5-Jun-01

49. Lito Piñero

Job Order

Metro Aide II

11-Jun-01

50. Rodulfo Zosa, Jr.Job Order

Metro Aide II

11-Jun-01

51. Jorge Arbolado

Job Order

Traffic Aide I

5-Jun-01

52. Ricardo M. Gonzales, Jr.

OIC-General Services Officer

Asst. Dept. Head I

5-Jun-01

Ruling of the CSC en banc and the Court of Appeals

On August 23, 2004, the CSC en banc issued Resolution No. 040932 denying petitioners' appeal, and affirming the invalidation of t

appointments on the ground that these were mass appointments made by an outgoing local chief executive.[10] The Commission explain

The rationale behind the prohibition in CSC Resolution No. 01-0988 is not hard to comprehend. The prohibition is designed

discourage losing candidates from extending appointments to their prot égés or from giving their constituents “promised” positions (

Resolution No. 97-0317 dated January 17, 1997, Re: Roldan B. Casinillo). Moreover, the same is intended to prevent the outgoing local c

executive from hurriedly issuing appointments which would subvert the policies of the incoming leadership. Thus, any means that wo

directly or indirectly circumvent the purposes for which said Resolution was promulgated should not be allowed, particularly when

appointments were issued by the appointing authority who lost in said election.

Petitioners filed a Motion for Reconsideration which was denied by the Commission on April 11, 2005, through CSC Resolution 050473.

Petitioners then filed a petition for review before the Court of Appeals, which was docketed as CA-G.R. CEB-SP No. 00665. On Au

28, 2007, the Court of Appeals denied the appeal and affirmed CSC Resolution No. 040932 dated August 23, 2004 and CSC Resolution

050473 dated April 11, 2005, ratiocinating that:

The spirit behind CSC Resolution No. 010988 is evident from its preamble. It was issued to thwart the nefarious practice by outgo

local chief executives in making appointments before, during, and/or after the regular local elections for ulterior partisan motives. S

practice being analogous to “midnight appointments” by the President or Acting President, the CSC then promulgated Resolution

010988, to suppress the mischief and evils attributed to “mass appointments” made by local chief executives.

Petitioners’ Motion for Reconsideration was denied by the Court of Appeals in a Resolution dated January 11, 2008.

THE PARTIES’ ARGUMENTS

Before us, petitioners maintain that CSC Resolution No. 010988 is invalid because the Commission is without authority to is

regulations prohibiting mass appointments at the local government level. Petitioners cite De Rama v. Court of Appeals[11] which held

Section 15, Article VII of the Constitution is only applicable to the President or Acting President. They claim that outgoing or defeated l

appointing authorities are authorized to make appointments of qualified individuals until their last day in office, and that not all m

appointments are invalid. Finally, petitioners claim that because Dumaguete City had been granted authority to take “final action” on

appointments, the Commission did not have any authority to disapprove the appointments made by outgoing mayor Remollo.

In their Comment dated May 15, 2008,*12+ respondents argue that petitioners’ appointments violated civil service rules and regulat

other than CSC Resolution No. 010988. Respondents also assert that the Commission is authorized to invalidate the petition

appointments, because the C SC accreditation program carried with it the caveat that “said exercise of authority shall be subject to C







x x x x

(h) Personnel Selection Board (PSB) Evaluation/Screening. Appointees should be screened and evaluated by the PSB, if applicable

proof thereof, a certification signed by the Chairman of the Board at the back of the appointment or alternatively, a copy of

proceedings/ minutes of the Board’s deliberation shall be submitted together with the appointment. The issuance of the appointment s

not be earlier than the date of the final screening/deliberation of the PSB.

Here, there was only one en banc meeting of the city PSB to consider the appointments, without any evidence that there were

deliberations on the qualifications of the petitioners, or any indication that there was an urgent need for the immediate issuance of s

appointments. The absence of evidence showing careful consideration of the merits of each appointment, and the timing and the numbe

appointments, militate against petitioners’ cause. On the contrary, the prevailing circumstances in this case indicate that the appointm

were hurriedly issued by the outgoing administration.

The Accreditation of Dumaguete City did not remove the CSC’s authority to review appointments

We find that the authority granted by CSC Resolution No. 992411 to the City Govern ment of Dumaguete to “take final action” on a

appointments did not deprive the Commission of its authority and duty to review appointments. Indeed, Resolution No. 992411 states

such exercise of authority shall be “subject to civil service law, rules and regulations” and that appointments in violation of pertinent r“shall immediately be invalidated.”

Moreover, Section 20, Rule VI of the Omnibus Rules Implementing Book V of Executive Order No. 292 provides that notwithstanding

initial approval of an appointment, the same may be recalled for “*v+iolation of other existing Civil Service laws, rules and regulations.” CSC is empowered to take appropriate action on all appointments and other personnel actions and that such power “includes the autho

to recall an appointment initially approved in disregard of applicable provisions of Civil Service law and regulations.”*24+

Petitioners have not engaged in forum shopping

The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, eit

simultaneously or successively, for the purpose of obtaining a favorable judgment.[25] Forum-shopping has been defined as the act

party against whom an adverse judgment has been rendered in one forum, seeking and possibly getting a favorable opinion in ano

forum, other than by appeal or the special civil action of certiorari, or the institution of two or more actions or proceedings grounded on

same cause on the supposition that one or the other court would make a favorable disposition.[26]

Although the factual antecedents of the cases brought before this Court are the same, they involve different issues. The pet ition

Mandamus with Injunction and Damages, docketed as Civil Case No. 13013, and raised before this Court as G.R. No. 177795, challen

respondents’ refusal to recognize petitioners’ appointments and to pay petitioners’ salaries, salary adjustments, and other emoluments.

petition only entailed the applications for the issuance of a writ of mandamus and for the award of damages. The present case dockete

G.R. No. 181559, on the other hand, involves the merits of petitioners’ appeal from the invalidation and revocation of their appointmentthe CSC-Field Office, which was affirmed by the CSC-Regional Office, CSC en banc, and the Court of Appeals.

In any event, this issue had already been settled in our Decision of June 19, 2009 in G.R. No. 177795, which found petitioners not gu

of forum shopping, to wit:

True, that the [Petition in G.R. No. 177795] and the one in G.R. No. 181559 are interrelated, but they are not necessarily the same

this Court to adjudge that the filing of both by petitioners constitutes forum shopping. In G.R. No. 181559, the Court will resolve whethe

not the petitioners’ appointments are valid. *In G.R. No. 177795+, petitioners are claiming a right to the salaries, salary adjustments

other emoluments during the pendency of the administrative cases, regardless of how the CSC decided the validity of their appointments.

WHEREFORE, the petition is DENIED for lack of merit. The Court of Appeals’ Decision in CA-G.R. CEB-SP No. 00665 dated August

2007 affirming CSC Resolution No. 040932 dated August 23, 2004 and CSC Resolution No. 050473 dated April 11, 2005, and its Resolut

dated January 11, 2008 denying the Motion for Reconsideration are AFFIRMED.

SO ORDERED.

PEOPLE OF THE PHILIPPINES,

Petitioner,

- versus -

THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A. VILLAPANDO,





1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan when the alleged crime was committed.

2. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.

3. There appears to be a dispute. This Court is now called upon to determine whether Orlando Tiape, at the time of [his] designatio

Municipal Administrator, was lacking in legal qualification. Stated differently, does “legal qualification” contemplate the one (1)

prohibition on appointment as provided for in Sec. 6, Art. IX-B of the Constitution and Sec. 94 (b) of the Local Government Code, manda

that a candidate who lost in any election shall not, within one year after such election, be appointed to any office in the Government?

The Court answers in the negative.

In ascertaining the legal qualifications of a particular appointee to a public office, “there must be a law providing for the qualifications

person to be nomi nated or appointed” therein. To illuminate further, Justice Rodolfo Palattao succinctly discussed in his book that

qualification of a public officer to hold a particular position in the government is provided for by law, which may refer to educati

attainment, civil service eligibility or experience:As the title suggests, the offender in this article is a public officer who nominates or appoints a person to a public office. The pe

nominated or appointed is not qualified and his lack of qualification is known to the party making the nomination or appointment.

qualification of a public officer to hold a particular position in the government is provided by law. The purpose of the law is to ensure

the person appointed is competent to perform the duties of the office, thereby promoting efficiency in rendering public service.

The qualification to hold public office may refer to educational attainment, civil service eligibility or experience. For instance, for one to

appointed as judge, he must be a lawyer. So if the Judicial and Bar Council nominates a person for appointment as judge knowing him to

not a member of the Philippine Bar, such act constitutes a violation of the law under consideration.

In this case, Orlando Tiape was allegedly appointed to the position of Municipal Administrator. As such, the law that provides for the l

qualification for the position of municipal administrator is Section 480, Article X of the Local Government Code, to wit:

“Section 480. Qualifications, Terms, Powers and Duties.– (a) No person shall be appointed administrator unless he is a citizen of

Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree preferably in pu

administration, law, or any other related course from a recognized college or university, and a first grade civil service eligible or

equivalent. He must have acquired experience in management and administration work for at least five (5) years in the case of

provincial or city administrator, and three (3) years in the case of the municipal administrator.

xxx xxx xxx.”

It is noteworthy to mention that the prosecution did not allege much less prove that Mayor Villapando’s a ppointee, Orlando Tiape, lac

any of the qualifications imposed by law on the position of Municipal Administrator. Prosecution’s argument rested on the assertion

since Tiape lost in the May 11, 1998 election, he necessarily lacked the required legal qualifications.

It bears stressing that temporary prohibition is not synonymous with absence or lack of legal qualification. A person who possessed

required legal qualifications for a position may be temporarily disqualified for appointment to a public position by reason of the one y

prohibition imposed on losing candidates. Upon the other hand, one may not be temporarily disqualified for appointment, but c ould no

appointed as he lacked any or all of the required legal qualifications imposed by law.

4. Anent the last element, this Court deems it unnecessary to discuss the same.

WHEREFORE, finding the “Demurrer to Evidence” filed by Mayor Villapando with merit, the same is hereby GRANTED. Mayor Villapand

hereby ACQUITTED of the crime charged.SO ORDERED.[13]

Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor, representing the People of

Philippines.

Villapando was required by this Court to file his comment to the petition. Despite several notices, however, he failed to do so and

Resolution[14] dated June 7, 2006, this Court informed him that he is deemed to have waived the filing of his comment and the case shal

resolved on the basis of the pleadings submitted by the petitioner.

Petitioner raises the following issues:

I.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION

INTERPRETING THAT THE “LEGAL DISQUALIFICATION” IN ARTICLE 244 OF THE REVISED PENAL CODE DOES NOT INCLUDE THE ONE Y

PROHIBITION IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE CONSTITUTION AND THE LOCAL GOVERNMENT CODE.

II.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR EXCESS OF JURISDICTION

GIVING DUE COURSE TO, AND EVENTUALLY GRANTING, THE DEMURRER TO EVIDENCE.[15]

Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of discretion amounting to lack or exces

jurisdiction.

Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion amounting to lack or excess of jurisdict

because its interpretation of Article 244 of the Revised Penal Code does not complement the provision on the one-year prohibition foun

the 1987 Constitution and the Local Government Code, particularly Section 6, Article IX of the 1987 Constitution which states no candid

who has lost in any election shall, within one year after such election, be appointed to any office in the government or any governm

owned or controlled corporation or in any of their subsidiaries. Section 94(b) of the Local Government Code of 1991, for its part, states

except for losing candidates in barangay elections, no candidate who lost in any election shall, within one year after such election,





BELLOSILLO, J.: The constitutionality of Sec. 13, par. (d), of R.A. 7227,

1 otherwise known as the "Bases Conversion and Development Act of 1992," un

which respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Metropolitan Authority (SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and temporestraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries and other operational expenattached to the office . . . ."

2 Paragraph (d) reads —

(d) Chairman administrator — The President shall appoint a professional manager as administrator of the Subic Authowith a compensation to be determined by the Board subject to the approval of the Secretary of Budget, who shalthe ex oficio chairman of the Board and who shall serve as the chief executive officer of the Subic Authority: Provi

however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shallappointed as the chairman and chief executive officer of the Subic Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the FilipCivilian Employees Association in U.S. Facilities in the Philippines, maintain that the proviso in par . (d) of Sec. 13 herein-above quotetalics infringes on the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states t

"[n]o elective official shall be eligible for appointment or designation in any capacity to any public officer or position during

tenure," 3

because the City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, ofConstitution, which provides that "[t]he President shall . . . . appoint all other officers of the Government whose appointments are otherwise provided for by law, and those whom he may be authorized by law to appoint",

4 since it was Congress through

questioned proviso and not the President who appointed the Mayor to the subject posts; 5

and, (c) Sec. 261, par. (g), of the OmnElection Code, which says:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . . (g) Appointment of new employcreation of new position, promotion, or giving salary increases. — During the period of forty-five days before a reg

election and thirty days before a special election, (1) any head, official or appointing officer of a government offagency or instrumentality, whether national or local, including government-owned or controlled corporations, wappoints or hires any new employee, whether provisional, temporary or casual, or creates and fills any new positexcept upon prior authority of the Commission. The Commission shall not grant the authority sought unless it is satisthat the position to be filled is essential to the proper functioning of the office or agency concerned, and that the posishall not be filled in a manner that may influence the election. As an exception to the foregoing provisions, a nemployee may be appointed in case of urgent need: Provided , however , That notice of the appointment shall be givethe Commission within three days from the date of the appointment. Any appointment or hiring in violation of provision shall be null and void. (2) Any government official who promotes, or gives any increase of salaryremuneration or privilege to any government official or employee, including those in government-owned or controcorporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by respondent Executive Secretary on 3 April 1

was within the prohibited 45-day period prior to the 11 May 1992 Elections.The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however ,That for the first year o

operations from the effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the chairman and chief executive off

of the Subic Authority ," violates the constitutional proscription against appointment or designation of elective officials to other governmposts.n full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any public office or position duhis tenure.Unless otherwise allowed by law or by the primary functions of his position, no appointive official shall hold any otoffice or employment in the Government or any subdivision, agency or instrumentality thereof, including governmowned or controlled corporations or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person, so that a public officer or emplomay serve full-time with dedication and thus be efficient in the delivery of public services. It is an affirmation that a public office is a f

time job. Hence, a public officer or employee, like the head of an executive department described in Civil Liberties Union v. ExecuSecretary , G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. 83815,

6 ". . . . should be allowed to attend to his duties and responsibilities without the distraction of other governmental duties

employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, wmay result in haphazardness and inefficiency . . . ."Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation where a local elective official will wfor his appointment in an executive position in government, and thus neglect his constituents . . . ."

7

n the case before us, the subject proviso directs the President to appoint an elective official, i.e., the Mayor of Olongapo City, to otgovernment posts (as Chairman of the Board and Chief Executive Officer of SBMA). Since this is precisely what the constitutioproscription seeks to prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. Iof the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the higher interest of the body politof no moment.



t is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local elective official to another post ifallowed by law or by the primary functions of his office.

8 But, the contention is fallacious. Section 94 of the LGC is not determinative of

constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land. Moreover, sthe constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought to be declared unconstitutional, we need not rulets validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity.n any case, the view that an elective official may be appointed to another post if allowed by law or by the primary functions of his offgnores the clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, AX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an appointive official when allowed by law

by the primary functions of his position, the first paragraph appears to be more stringent by not providing any exception to the rule agaappointment or designation of an elective official to the government post, except as are particularly recognized in the Constitution it

e.g., the President as head of the economic and planning agency;

9

the Vice-President, who may be appointed Member of Cabinet;10

and, a member of Congress who may be designated ex officio member of the Judicial and Bar Council.11

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

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is that the prohibition is mstrict with respect to elective officials, because in the case of appointive officials, there may be a law that will allow thto hold other positions.MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials, there will be cersituations where the law should allow them to hold some other positions.

12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph cannot be extended to elective officwho are governed by the first paragraph.t is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo City, hence, an excepted circumsta

citing Civil Liberties Union v. Executive Secretary ,13

where we stated that the prohibition against the holding of any other office

employment by the President, Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure, as provide

Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by the primary functions of the offic

concerned, who are to perform them in an ex officio capacity as provided by law, without receiving any additional compensation therefor

This argument is apparently based on a wrong premise. Congress did not contemplate making the subject SBMA posts as ex offici

automatically attached to the Office of the Mayor of Olongapo City without need of appointment. The phrase "shall be appointunquestionably shows the intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Habeen the legislative intent to make the subject positions ex officio, Congress would have, at least, avoided the word "appointed" anstead, "ex officio" would have been used.

14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene Sec. 7, first par., Art. IX-B, but tnevertheless passed the bill and decided to have the controversy resolved by the courts. Indeed, the Senators would not have bconcerned with the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio.Cognizant of the complication that may arise from the way the subject proviso was stated, Senator Rene Saguisag remarked that "if

Conference Committee just said "the Mayor shall be the Chairman" then that should foreclose the issue. It is a legislative choice."

15

Senator took a view that the constitutional proscription against appointment of elective officials may have been sidestepped if Congattached the SBMA posts to the Mayor of Olongapo City instead of directing the President to appoint him to the post. Without passupon this view of Senator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud argument that they are ex officio.The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot be applied to uphold constitutionality of the challenged proviso since it is not put in issue in the present case. In the same vein, the argument that if no electofficial may be appointed or designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive doucompensation

16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject proviso. In any case,

Vice-President for example, an elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive compensation attached to the cabinet position if specifically authorized by law.Petitioners also assail the legislative encroachment on the appointing authority of the President. Section 13, par. (d), itself vests inPresident the power to appoint the Chairman of the Board and the Chief Executive Officer of SBMA, although he really has no choice un

the law but to appoint the Mayor of Olongapo City.As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having authority therefor, to dischargeduties of some office or trust,"

17 or "[t]he selection or designation of a person, by the person or persons having authority therefor, to fi

office or public function and discharge the duties of the same.18

In his treatise,Philippine Polit

Law ,19

Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority vested with the power, ofndividual who is to exercise the functions of a given office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a discretion. According to WoodbJ.,

20 "the choice of a person to fill an office constitutes the essence of his appointment,"

21 and Mr. Justice Malcolm adds that

"[a]ppointment to office is intrinsically an executive act involving the exercise of discretion."22

In Pamantasan ng Lungsod ng Maynil

Intermediate Appellate Court23

we held:The power to appoint is, in essence, discretionary. The appointing power has the right of choice which he may exerfreely according to his judgment, deciding for himself who is best qualified among those who have the necess

qualifications and eligibilities. It is a prerogative of the appointing power . . . .



ndeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint; not a ministerial act of issuing appointment papers to the appointee. In other words, the choice of the appointee is a fundamencomponent of the appointing power.Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot at the same time limit the choicthe President to only one candidate. Once the power of appointment is conferred on the President, such conferment necessarily carriesdiscretion of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such poweto divest the appointing authority, directly or indirectly, of his discretion to pick his own choice. Consequently, when the qualificatprescribed by Congress can only be met by one individual, such enactment effectively eliminates the discretion of the appointing powechoose and constitutes an irregular restriction on the power of appointment.

24

n the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for the first year of its operations f

the effectivity of R.A. 7227, the proviso nevertheless limits the appointing authority to only one eligible, i.e., the incumbent MayoOlongapo City. Since only one can qualify for the posts in question, the President is precluded from exercising his discretion to chowhom to appoint. Such supposed power of appointment, sans the essential element of choice, is no power at all and goes against the vnature itself of appointment.While it may be viewed that the proviso merely sets the qualifications of the officer during the first year of operations of SBMA, i.e.

must be the Mayor of Olongapo City, it is manifestly an abuse of congressional authority to prescribe qualifications where only one, andother, can qualify. Accordingly, while the conferment of the appointing power on the President is a perfectly valid legislative the proviso limiting his choice to one is certainly an encroachment on his prerogative.Since the ineligibility of an elective official for appointment remains all throughout his tenure or during his incumbency, he may howeresign first from his elective post to cast off the constitutionally-attached disqualification before he may be considered fit for appointmeThe deliberation in the Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with TENURE.MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his position.

MR. DAVIDE. Yes, we should allow that prerogative.MR. FOZ. Resign from his position to accept an executive position.MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may leave the service, but if hprohibited from being appointed within the term for which he was elected, we may be depriving the government of needed expertise of an individual.

25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to another public office.Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his ineligibility, appointed to otgovernment posts, he does not automatically forfeit his elective office nor remove his ineligibility imposed by the Constitution. On contrary, since an incumbent elective official is not eligible to the appointive position, his appointment or designation thereto cannotvalid in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13, Art. VI, of the Constitution wh"(n)o Senator or Member of the House of Representatives may hold any other office or employment in the Government . . . during his twithout forfeiting his seat . . . ." The difference between the two provisions is significant in the sense that incumbent national legisla

ose their elective posts only after they have been appointed to another government office, while other incumbent elective officials mfirst resign their posts before they can be appointed, thus running the risk of losing the elective post as well as not being appointed to other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where expressly provided by law that a person holding one office shall be ineligible to another. Such a provision is held to incapacitate ncumbent of an office from accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 2

McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutt63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)."

26 "Where

constitution, or statutes declare that persons holding one office shall be ineligible for election or appointment to another office, eitgenerally or of a certain kind, the prohibition has been held to incapacitate the incumbent of the first office to hold the second so that attempt to hold the second is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)."

27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of Chairman of the Board and CExecutive of SBMA; hence, his appointment thereto pursuant to a legislative act that contravenes the Constitution cannot be sustainedhowever remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered

facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so fathey involve the interest of the public and third persons, where the duties of the office were exercised . . . . under color of a known elecor appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, oreason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public . . . . [or] un

color of an election, or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be such (StateCarroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)."

28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other emoluments which may have breceived by respondent Gordon pursuant to his appointment may be retained by him.The illegality of his appointment to the SBMA posts being now evident, other matters affecting the legality of the questioned proviso as as the appointment of said respondent made pursuant thereto need no longer be discussed.n thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in the floor deliberations of S.B. 1

precursor of R.A. 7227, when he articulated —



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

29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or a rock in the ocean amidst raging of the waves."

30 One of the characteristics of the Constitution is permanence, i.e., "its capacity to resist capricious or whim

change dictated not by legitimate needs but only by passing fancies, temporary passions or occasional infatuations of the people with idor personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political expediency, personal ambitions oadvised agitation for change."

31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however, That for the first year of its operations f

the effectivity of this Act, the Mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of the S

Authority ," is declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo City, respondRichard J. Gordon, is INVALID, hence NULL and VOID.However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as such Chairman and Chief ExecuOfficer may be retained by him, and all acts otherwise legitimate done by him in the exercise of his authority as officer de facto of SBMAhereby UPHELD.SO ORDERED.Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo and Quiason, JJ., concur. Padilla, J., is on leave.

[G.R. No. 139792. November 22, 2000]

ANTONIO P. SANTOS, petitioner, vs. THE HONORABLE COURT OF APPEALS, METROPOLITAN AUTHORITY, now known as METROPOLI

MANILA DEVELOPMENT AUTHORITY, and THE CIVIL SERVICE COMMISSION, respondents.

D E C I S I O N

DAVIDE, JR., C.J.:

In this petition for review on certiorari petitioner assails the decision of 19 August 1999 of the Court of Appeals[1] in CA-G.R. SP No. 483

which held that petitioner’s separation pay under Section 11 of R.A. No. 7924 should be limited to the number of years of his service in

Metropolitan Manila Authority (MMA) only, excluding his years of service as judge of the Metropolitan Trial Court (MeTC) of Quezon City

which he has already been given retirement gratuity and pension.

The undisputed facts are as follows:

On 18 January 1983, petitioner was appointed Judge of the MeTC of Quezon City, and he thereafter assumed office. After the militbacked EDSA revolt, petitioner was reappointed to the same position.

On 1 April 1992, petitioner optionally retired from the Judiciary under R.A. No. 910,[2] as amended, and received his retirement grat

under the law for his entire years in the government service; and five years thereafter he has been regularly receiving a monthly pension.

On 2 December 1993, petitioner re-entered the government service. He was appointed Director III of the Traffic Operation Center of

MMA. His appointment was approved by the Civil Service Commission (CSC).

On 1 March 1995, Congress enacted R.A. No. 7924, which reorganized the MMA and renamed it as Metropolitan Manila Developm

Authority (MMDA). Section 11 thereof reads:

Section 11. Transitory Provisions. – To prevent disruption in the delivery of basic urban services pending the full implementation of

MMDA’s organizational structure and staffing pattern, all officials and employees of the interim MMA shall continue to exerci se their duand functions and receive their salaries and allowances until they shall have been given notice of change of duties and functions, and

being transferred to another office or position.

. .

The civil service laws, rules and regulations pertinent to the displacement of personnel affected by this Act shall be strict ly enforced.

national government shall provide such amounts as may be necessary to pay the benefits accruing to displaced employees at the rate of

and one- fourth (1¼) month’s salary for every year of service: Provided, That, if qualified for retirement under existing retirement laws,

employees may opt to receive the benefits thereunder.

On 16 May 1996, the President of the Philippines issued Memorandum Order No. 372 approving the Rules and Regulations Implemen

R.A. No. 7924. Pursuant thereto, the MMDA issued Resolution No. 16, series of 1996, which, inter alia, authorized the paymen





Now, the state again wishes to show its gratitude to petitioner by awarding him separation pay for his services as a director of the Me

Manila Authority (MMA), another chapter of petitioner’s government service which has come to a close by the reorganization of the M

into the Metropolitan Manila Development Authority.

The Court, in limiting the computation of petitioner’s separation pay to the number of years of his service at the MMA, merel

implementing the ruling in “Chavez, Sr. vs. Mathay” (37 SCRA 776), which ruling, if not actually in point, is nevertheless ap plicable owin

its “common-sense consideration.” Said ruling reads:

“The ‘common-sense consideration’ stated by Mr. Justice J.B.L. Reyes for the Court in Espejo, that if a retiree is being credited with his y

of service under his first retirement in computing his gratuity under his second retirement, it is but just that the retirement gratuity rece

by him under his first retirement should also be charged to his account, manifestly govern the case at bar. It is but in accordance withrule consistently enunciated by the Court as in Anciano v. Otadoy, affirming Borromeo, that claims for double retirement or pension such

petitioner’s, ‘would run roughshod over the well -settled rule that in the absence of an express legal exception, pension and gratuity la

should be so construed as to preclude any person from receiving double pension.’ (p. 780, underscoring supplied)

The case at bench is not, strictly speaking, about ‘double pension.’ It is, however, about the interpretation of a gratuity law, viz., Sectio

of Republic Act No. 7924 which awards separation pay to those government employees who were displaced by the reorganization of

MMA into the MMDA, which should be construed to preclude a government employee from receiving double gratuity for the same year

service.

We affirm the assailed judgment. We agree with the Court of Appeals and the Civil Service Commission that for the purpose of computin

determining petitioner’s separation pay under Section 11 of R.A. No. 7924, his years of service in the Judiciary should be excluded and

his separation pay should be solely confined to his services in the MMA.

In the first place, the last paragraph of Section 11 of R.A. No. 7924 on the grant of separation pay at the rate of “one and one-fourth

months of salary for every year of service” cannot by any stretch of logic or imagination be interpreted to refer to the total length o f ser

of an MMA employee in the government, i.e., to include such service in the government outside the MMA. Since it allows the gran

separation pay to employees who were to be displaced thereby the separation pay can be based only on the length of service in the MM

The displacement amounted to an abolition of the office or position of the displaced employees, such as that of petitioner. The rule is set

that Congress may abolish public offices. Such a power is a consequent prerogative of its power to create public offices.[4] However,

power to abolish is subject to the condition that it be exercised in good faith. [5] The separation partook of the nature of a disturbanc

compensation; hence, the separation pay must relate only to the employment thus affected.

Second, petitioner himself must have realized that Section 11 does not allow the tacking in of his previous government service. If he w

convinced that it does he could have instead applied for retirement benefits, since by adding his years of service in the MMA to his previ

years of service in the Government he could have retired under the third paragraph of Section 11, which pertinently reads:

Provided, That, if qualified for retirement under existing retirement laws, said employee may opt to receive the benefits thereunder.

Third, after the approval of his optional retirement on 1 April 1992, petitioner was fully paid of his retirement gratuity under R.A. No. 910

amended; and five years thereafter he has been receiving a monthly pension.

The petitioner cannot take refuge under the second paragraph of Section 8 of Article IX-B of the Constitution, which provides:

Pensions or gratuities shall not be considered as additional, double, or indirect compensation.

This provision simply means that a retiree receiving pension or gratuity can continue to receive such pension or gratuity even if he acce

another government position to which another compensation is attached.[6]

Indeed, the retirement benefits which petitioner had received or has been receiving under R.A. No. 910, as amended, do not consti

double compensation. He could continue receiving the same even if after his retirement he had been receiving salary from the defunct M

as Director III thereof. This is but just because said retirement benefits are rewards for his services as MeTC Judge, while his salary wa

compensation for his services as Director III of the MMA.

However, to credit his years of service in the Judiciary in the computation of his separation pay under R.A. No. 7924 notwithstanding the

that he had received or has been receiving the retirement benefits under R.A. No. 910, as amended, would be to countenance dou

compensation for exactly the same services, i.e., his services as MeTC Judge. Such would run counter to the policy of this Court aga

double compensation for exactly the same services.[7] More important, it would be in violation of the first paragraph of Section 8 of Art

IX-B of the Constitution, which proscribes additional, double, or indirect compensation. Said provision reads:



No elective or appointive public officer or employee shall receive additional, double, or indirect compensation, unless specifically authori

by law… .

Section 11 of R.A. No. 7924 does not specifically authorize payment of additional compensation for years of government service outsid

the MMA.

WHEREFORE, finding no reversible error in the judgment appealed from, the petition in this case is DENIED for want of merit, and

decision of 19 August 1999 of the Court of Appeals in CA-G.R. SP No. 48301 is AFFIRMED.

Costs against petitioner.

SO ORDERED.

G.R. No. 169637 June 8, 2007BENGUET STATE UNIVERSITY represented by its President ROGELIO D. COLTING, petitiovs.COMMISSION ON AUDIT, respondent.D E C I S I O NNACHURA, J.:Before this Court is a Petition for Review on Certiorari filed by petitioner Benguet State University (BSU) seeking to nullify CommissionAudit (COA) Decision No. 2003-112

1 and Decision No. 2005-019

2 dated March 17, 2005. COA Decision No. 2003-112 affirmed COA-

Decision No. 2000-3, disallowing the rice subsidy and health care allowance to the employees of BSU, while COA Decision 2005-019 denBSU's motion for reconsideration.

On July 6, 1997, Congress passed Republic Act No. 8292 entitled An Act Providing for the Uniform Composition and Powers of the Govern

Boards, the Manner of Appointment and Term of Office of the President of Chartered State Universities and Colleges, and for O

Purposes, commonly known as the Higher Education Modernization Act of 1997 . Pursuant to Section 4 (d) of the said law, the BoarRegents of BSU passed and approved Board Resolution No. 794 on October 31, 1997, granting rice subsidy and health care allowanceBSU’s employees. The sums were taken from the income derived from the operations of BSU and were given to the employees at di ffeperiods in 1998.On October 20, 1999, the grant of this rice subsidy and health care allowance in the total amount of P4,350,000.00 was disallowed in aunder Notice of Disallowance No. 99-001-STF (98), stating that R.A. No. 8292 does not provide for the grant of said allowance to employand officials of the university.

3

BSU requested the lifting of the disallowance with the COA Regional Office but it was denied in COA-CAR Decision No. 2000-3 dated Janu26, 2000.

4 Citing Section 55 (2) of R.A. No. 8522 or the General Appropriation Act of 1998, it held that a non-existent item, project, acti

purpose, or object of expenditure cannot be funded by augmentation from savings or by the use of appropriations. It further held that

grant of said allowances lacked statutory basis, transgressed the constitutional proscription on additional, double, or indirect compensaand ran counter to the provisions of the Salary Standardization Law.BSU thereafter filed a petition for review of Decision No. 2000-3 with the COA, which petition was denied in Decision No. 2003-112

5 da

July 17, 2003. The Commission ratiocinated:Concededly, the provision in Section 8, Article IX-B, 1987 Constitution that, "No elective or appointive public officers or emploshall receive additional, double or indirect compensation, unless specifically authorized by law" allows the payment of additiocompensation when specifically authorized by law. In the instant case, BSU alleges that the grant of Rice Subsidy and Health Callowance to its employees in 1998 is authorized by law, specifically Section 4 of R.A. No. 8292, otherwise known as the HigEducation Modernization Act of 1997. However, a closer perusal of the specific legal provision which reads thus:

"Sec. 4. Powers and Duties of Governing Boards x x x

"d) x x x

Any provision of existing laws, rules and regulations to the contrary notwithstanding, any income generated by

university or college, from tuition fee and other charges, as well as from the operation of auxiliary services and lgrants, shall be retained by the university or college, and may be disbursed by the Board of Regents/Trus

for instruction, research, extension or other programs/projects of the university or college x x x" clearly negate such claim of authority. It is noted that the term "other programs/projects" refers to such programs which university may specifically undertake in pursuance of its primary objective which is to attain quality higher education. The could not have intended that the term "program/projects" embrace all programs of BSU, for these benefits, though part of overall operations, are not directly related to BSU's academic program. Under the maxim of ejusdem generis, the mention general term after the enumeration of specific matters should be held to mean that the general term should be of the same geas the specific matters enumerated and, therefore, the "other programs and projects" should be held to be of the same naturinstruction, research and extension. The inclusion of an incentive such as Rice Subsidy and Health Care Allowance to its teachand non-teaching personnel is a patent or blatant disregard of the statutory limitation on the powers of the governing BoardSUCs, as these benefits are indubitably not one of instruction, research or extension.

http://www.lawphil.net/judjuris/juri2007/jun2007/gr_169637_2007.html#fnt1





















Furthermore, employment in government service guarantees salaries and other compensation packages and benefits pursuanpertinent provisions of the Civil Service Law. Allowing other benefits to be granted in excess of those authorized by law is illegasuch, BSU's attempt to grant benefits over and above those granted by the Civil Service Law cannot be countenanced.

6

A motion for reconsideration was filed but was denied in the assailed Decision No. 2005-019 dated March 17, 2005.7

Hence, this petition with BSU positing these issues:A. Whether or not Petitioner is authorized to grant Health Care Allowance and Rice Subsidy to its employees; andB. Whether or not the recipients should reimburse the amounts received by them.

8

Before addressing the issues raised in the present petition, it bears noting that what was filed before this Court is a petition captionea Petition for Review on Certiorari . We point out that a petition for review on certiorari is not the proper mode by which the COA’s decis

are reviewed by this Court. Under Rule 64, Section 2 of the 1997 Rules of Civil Procedure, a judgment or final order of the COA may

brought by an aggrieved party to this Court oncertiorari under Rule 65.

9

Thus, it is only through a petition for certiorari under Rule 65 the COA's decisions may be reviewed and nullified by us on the ground of grave abuse of discretion or lack or excess of jurisdiction.10

However, though captioned as a Petition for Review on Certiorari , we treat this petition as a petition for certiorari under Rule 65 foalleges "grave abuse of discretion" and "reversible legal error." The averments in the complaint, not the nomenclature given by the pardetermine the nature of the action.

11 Likewise, in previous rulings, We have treated differently labeled actions as special civil act

for certiorari under Rule 65 for reasons such as justice, equity, and fair play.12

BSU ascribes legal error and grave abuse of discretion to the COA in affirming the disallowance of the rice subsidy and health care beneRelying on R.A. No. 8292, BSU maintains that it can grant said benefits to its employees. It argues that the said law vests state universiand colleges with fiscal autonomy, and grants them ample leeway in the appropriation and disbursement of their funds. BSU adds thatgrant did not contravene the constitutional prohibition on additional compensation because the allowances are granted as an incentivappreciation of services rendered and in recognition of the economic plight of the employees. Also, the amounts used were taken fncome generated by its operation and retained by the university which, under R.A. No. 8292, may be disbursed by its Governing Board

manner it may determine to carry out its programs. Finally, it argues that the Salary Standardization Law does not expressly prohibit

benefits, because the said allowances are in the nature of a financial assistance and not an additional income.We affirm the assailed Decisions.BSU’s contention that it is authorized to grant allowances to its employees is based on Section 4 (d) of R.A. No. 8292. The provision read

SECTION 4. Powers and Duties of Governing Boards. — The governing board shall have the following specific powers and dutieaddition to its general powers of administration and the exercise of all the powers granted to the board of directors ocorporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines:x x x x x x x x xd) to fix the tuition fees and other necessary school charges, such as but not limited to matriculation fees, graduation fees laboratory fees, as their respective boards may deem proper to impose after due consultations with the involved sectors.Such fees and charges, including government subsidies and other income generated by the university or college, shall constispecial trust funds and shall be deposited in any authorized government depository bank, and all interests shall accrue therefshall part of the same fund for the use of the university or college: Provided, That income derived from university hospitals sha

exclusively earmarked for the operating expenses of the hospitals.Any provision of existing laws, rules and regulations to the contrary notwithstanding, any income generated by the universitcollege from tuition fees and other charges, as well as from the operation of auxiliary services and land grants, shall be retainethe university or college, and may be disbursed by the Board of Regents/Trustees for instruction, research, extension, or otprograms/projects of the university or college: Provided, That all fiduciary fees shall be disbursed for the specific purposeswhich they are collected.If, for reasons beyond its control, the university or college, shall not be able to pursue any project for which funds have bappropriated and, allocated under its approved program of expenditures, the Board of Regents/Trustees may authorize the ussaid funds for any reasonable purpose which, in its discretion, may be necessary and urgent for the attainment of the objectiand goals of the universities or college;x x x x x x x x x

Similarly, Commission on Higher Education (CHED) Memorandum No. 03-01, the Revised Implementing Rules and Regulations (IRR) for No. 8292, provides:

RULE VPowers and Duties of the Governing BoardsSECTION 18. Powers and Duties of Governing Boards (GBs). — The GBs of chartered SUCs shall have the following powers duties, in addition to its general powers of administration and the exercise of all the powers granted to a Board of Directors corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the "Corporation Code of the Philippines," thus:x x x x x x x x x(d) to fix the tuition fees and other necessary charges, such as, but not limited, to matriculation fees, graduation fees laboratory fees, as they may deem proper to impose, after due consultations with the involved sectors.Such fees and charges, including government subsidies and other income generated by the university or college, shall constispecial trust funds and shall be deposited in any authorized government depository bank, and all interest that shall acctherefrom shall be part of the same fund for the use of the university or college: Provided, that income derived from universitcollege hospitals shall be exclusively earmarked for the operations of the hospitals.































Any income generated by the university or college from tuition fees and other charges, as well as from the operation of auxiservices and land grants, shall be retained by the university or college, and may be disbursed by its GB for instruction, reseaextension, or other programs/projects of the university or college: Provided, That all fiduciary fees shall be disbursed for specific purposes for which they are collected.If, for reasons beyond its control, the university or college shall not be able to pursue any project for which funds have bappropriated and allocated under its approved program of expenditures, its GB may authorize the use of said funds for reasonable purpose which, in its discretion, may be necessary and urgent for the attainment of the objectives and goals of university or college;x x x x x x x x x

What is clear from Section 4 (d) of R.A. No. 8292 cited by BSU as legal basis of its claim as well as from its implementing rules is that inco

generated by the university may be disbursed by its Governing Board for "instruction, research, extension, or other programs/projectthe university or colleges."BSU theorizes that the phrase "other programs/projects of the university or college" in Section 4 (d) covers all projects and programs ofuniversity, including those designed to uplift the economic plight of the employees. It is not limited to those programs which the univermay specifically undertake in pursuance of its primary objective to achieve quality education, contrary to the interpretation of the COA.We disagree.Under the principle of ejusdem generis, where a statute describes things of a particular class or kind accompanied by words of a gencharacter, the generic word will usually be limited to things of a similar nature with those particularly enumerated, unless theresomething in the context of the statute which would repel such inference.

13The COA correctly ruled that the "other programs/proje

under R.A. No. 8292 and its Implementing Rules should be of the same nature as instruction, research, and extension. In BSU's case, disbursements were for rice subsidy and health care allowances which are, in no way, intended for academic programs similarnstruction, research, or extension. Section 4 (d) cannot, therefore, be relied upon by BSU as the legal basis for the grant of the allowanc

Furthermore, a reading of the entire provision supports the COA’s interpretation that the authority given to the Governing Bo ard of s

universities and colleges is not plenary and absolute. It is clear in Section 4 that the powers of the Governing Board are subjecimitations. This belies BSU's claim of plenary and absolute authority.

Neither can BSU find solace in the academic freedom clause of the Constitution. Academic freedom as adverted to in the Constitution an

R.A. No. 8292 only encompasses the freedom of the institution of higher learning to determine for itself, on academic grounds, who mteach, what may be taught, how it shall be taught, and who may be admitted to study .

14 The guaranteed academic freedom does not g

an institution of higher learning unbridled authority to disburse its funds and grant additional benefits sans statutory basis. Unfortunafor BSU, it failed to present any sound legal basis that would justify the grant of these additional benefits to its employees.Section 8, Article IX-B of the 1987 Constitution, is clear that:

No elective or appointive public officer or employee shall receive additional, double or indirect compensation, unless specificauthorized by law, nor accept without the consent of Congress, any present, emolument, office or title of any kind from foreign government.

Pensions or gratuities shall not be considered as additional, double or indirect compensation.Besides, Section 12 of R.A. No. 6758 or the Salary Standardization Law already provides for consolidation of allowances in the standardsalary rates, thus:

SEC. 12. Consolidation of All Allowances and Compensation . – All allowances, except for representation and transportaallowances; clothing and laundry allowances; subsistence allowance of marine officers and crew on board government vessels hospital personnel; hazard pay; allowances of foreign service personnel stationed abroad; and such other additional compensanot otherwise specified herein as may be determined by the DBM, shall be deemed included in the standardized salary raherein prescribed. Such other additional compensation, whether in cash or in kind, being received by incumbents only as of Ju1989 not integrated into the standardized salary rates shall continue to be authorized.

The benefits excluded from the standardized salary rates are the "allowances" which are usually granted to officials and employees of government to defray or reimburse the expenses incurred in the performance of their official functions .

15 Clearly, the rice subsidy

health care allowance granted by BSU were not among the allowances listed in Section 12 which State workers can continue to receunder R.A. No. 6758 over and above their standardized salary rates. Hence, no abuse of discretion was committed by the COA in disallow

the disbursement of funds.As regards the refund of the disallowed benefits, this Court holds that the employees need not refund the benefits they received basedour ruling in Philippine Ports Authority v. Commission on Audit .

16 In that case, the COA disallowed the payment of hazard duty pay

birthday cash gifts to its employees. This Court sustained the disallowance because the grant was without legal basis. However, this Coruled against the refund holding that:

x x x Petitioners received the hazard duty pay and birthday cash gift in good faith since the benefits were authorized by PPA SpeOrder No. 407-97 issued pursuant to PPA Memorandum Circular No. 34-95 implementing DBM National Compensation Circular76, series of 1995, and PPA Memorandum Circular No. 22-97, respectively. Petitioners at the time had no knowledge that payment of said benefits lacked legal basis. Being in good faith, petitioners need not refund the benefits they received.

17

The ruling in Philippine Ports Authority applies to this case. The BSU employees received the rice subsidy and health care allowances in gfaith since the benefits were authorized by Board Resolution No. 794, series of 1997. They h ad no knowledge that the grant of said beneacked statutory basis. Therefore, a refund is unnecessary.























WHEREFORE, the instant petition is DENIED. Commission on Audit Decisions No. 2003-112 and No. 2005-019 areAFFIRMEDwith MODIFICATION that BSU employees need not refund the rice subsidy and health care allowance received per Board Resolution 794, series of 1997.No pronouncement as to costs.SO ORDERED.EFREN M. HERRERA and ESTHER C.

GALVEZ, for and on their behalf and

on behalf of OTHER SEPARATED,

UNREHIRED and RETIRED

EMPLOYEES OF THE NATIONAL

POWER CORPORATION,Petitioners,

- versus -

NATIONAL POWER CORPORATION,

THE DEPARTMENT OF BUDGET

AND MANAGEMENT and THE

OFFICE OF THE SOLICITOR

GENERAL,

Respondents.

G.R. No. 166570

Present:

CARPIO,* J., Chairperson,

LEONARDO-DE CASTRO,**

BRION,

DEL CASTILLO, and

ABAD, JJ.

Promulgated

December 18, 2009

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

D E C I S I O N

DEL CASTILLO, J.:

The question at the heart of this case is whether petitioners, former employees of the National Power Corporation (NPC) who w

separated from service due to the government’s initiative of restructuring the electric power industry, are entitle d to their retirem

benefits in addition to the separation pay granted by law.

Absent explicit statutory authority, we cannot provide our imprimatur to the grant of separation pay and retirement benefits from one sinact of involuntary separation from the service, lest there be duplication of purpose and depletion of government resources. Within

context of government reorganization, separation pay and retirement benefits arising from the same cause, are in consideration of the sa

services and granted for the same purpose. Whether denominated as separation pay or retirement benefits, these financial benefits rew

government service and provide monetary assistance to employees involuntarily separated due to bona fide reorganization.

This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court on a pure question of law against the Decision[1] da

December 23, 2004 rendered by the Regional Trial Court (RTC), Branch 101, Quezon City in SCA No. Q-03-50681 (for Declaratory Re

entitled National Power Corporation v. Napocor Employees and Workers Union (NEWU), NAPOCOR Employees Consolidated Union (NEC

NPC Executive Officers Association, Inc. (NPC-EXA), Esther Galvez and Efren Herrera, for and on their behalf and in behalf of other separa

unrehired, and retired employees of the National Power Corporation, the Department of Budget and Management (DBM), the Office of

Solicitor General (OSG), the Civil Service Commission (CSC) and the Commission on Audit (COA). Said Decision ruled that the petitioners







1) Section 63 of RA No. 9136 and Section 3, Rule 33 of its Implementing Rules and Regulations do not authorize the grant of retirem

benefits in addition to the separation pay already received. Rather, Section 63 requires separated employees to choose betwee

separation plan under existing laws or the separation package under the EPIRA.

2) The grant of both separation pay and retirement benefit amounts to double gratuity in direct contravention of the Constitution.

3) No law authorizes the payment of both separation pay and retirement benefits to petitioners.

Issue

The sole issue in this case is whether or not NPC employees who were separated from the service because of the reorganization of

electric power industry and who received their separation pay under RA No. 9136 are still entitled to receive retirement benefits under

No. 186, as amended.

Our Ruling

We deny the petition and affirm the court a quo’s Decision dated December 23, 2004 in SCA No. Q -03-50681.

Absent clear and unequivocal statutory authority, the grant of both separation pay and retirement benefits violates the constituti

proscription on additional compensation.

Section 8 of Article IX(B) of the Constitution provides that “*n+o elective or appointive public officer or employee shall receive additio

double, or indirect compensation, unless specifically authorized by law”. In prior decisions, we have ruled that there must be a clear unequivocal statutory provision to justify the grant of both separation pay and retirement benefits to an employee.[21] Here, absen

express provision of law, the grant of both separation and retirement benefits would amount to double compensation from one single ac

separation from employment.

Petitioners claim that Section 9 of RA No. 6656[22] amounts to sufficient statutory basis for the grant of both retirement benefits

separation pay. Section 9 provides:

x x x Unless also separated for cause, all officers and employees, who have been separated pursuant to reorganization sha

entitled thereto, be paid the appropriate separation pay and retirement and other benefits under existing laws within ninety (90) days fr

the date of the effectivity of their separation or from the date of the receipt of the resolution of their appeals as the case may be. Provid

That application for clearance has been filed and no action thereon has been made by the corresponding department or agency. Those

are not entitled to said benefits shall be paid a separation gratuity in the amount equivalent to one (1) month salary for every yeaservice. Such separation pay and retirement benefits shall have priority of payment out of the savings of the department or age

concerned. (Emphasis supplied)

Unfortunately for the petitioners, their interpretation has little legal precedent. The CSC has previously ruled that employees simi

situated to petitioners herein were not entitled to both separation pay and retirement benefits; instead, the concerned employee must ei

avail of the separation benefit or opt to retire if qualified under existing laws. In CSC Resolution No. 021112,[23] the CSC interpreted

phrase “separation pay and retirement” in RA No. 6656 as follows:

x x x While the aforequoted provision of law used the conjunctive "and" between the words "separation pay" and "retirement",

does not mean that both benefits shall be given to an affected employee. This interpretation is supported by the phrase "if entitled there

found before the phrase "be paid the appropriate separation pay and retirement and other benef its under existing laws". Thus, paymen

both separation and retirement benefits is not absolute.

Also, in CSC Resolution No. 00-1957,[24] the CSC declared:

The aforequoted provision of law says: ‘separation pay and retirement and other benefits under existing laws’. Be it noted that

conjunctive ‘and’ is used between ‘separation pay and retirement’, which in its elementary sense would mean that they are to be ta

jointly. (Ruperto G. Martin, Statutory Construction, sixth edition , p. 88) Obviously, therefore, ‘separation pay and retirement’ refer to o

one benefit, of which an employee affected by the reorganization, if entitled thereto, must be paid plus other benefits under existing la

i.e. terminal leave pay, etc.

Further, in Cajiuat v. Mathay,[25] we found that in the absence of express provisions to the contrary, gratuity laws should be constr

against the grant of double compensation. Cajiuat involved employees of the Rice and Corn Administration who exercised their optio



retire under CA No. 186 and received the appropriate retirement benefits. Subsequently, the Rice and Corn Administration was abolishe

Presidential Decree No. 4.[26] Said Decree also provided for the payment of a gratuity in Section 26, paragraph 3:

Permanent officials and employees of the Rice and Corn Administration who cannot be absorbed by the Administration, or who can

transfer or to be transferred to other agencies, or who prefer to retire, if qualified for retirement, or to be laid off, shall be given gra

equivalent to one month salary for every year of service but in no case more than twenty-four months salary, in addition to all o

benefits to which they are entitled under existing laws and regulations. x x x

On the basis of this provision, the retired employees of the Rice and Corn Administration claimed that they were entitled to the separa

gratuity, over and above the retirement benefits already received. We disagreed and held that:

x x x [t]here must be a provision, clear and unequivocal, to justify a double pension. The general language employed in paragraph 3, S ec

26 of Presidential Decree No. 4 fails to meet that test. All that it states is that permanent employees of the Rice and Corn Administra

who are retirable are entitled to gratuity equivalent to one month salary for every year of service but in no case more than twenty f

months salary in addition to other benefits to which they are entitled under existing laws and regulations. To grant double gratuit

unwarranted. No reliance can be placed *on+ the use of the term “other benefits” found in the paragraph relied upon. As clear ly stated in

memorandum of the Solicitor General, they refer to “those receivable by a retiree under the general retirement laws, like the refund

contributions to the retirement fund and the money value of the accumulated vacation and sick leaves of said official employee. The cla

“in addition to all other benefits to which they are entitled under existing laws and regulations” was inserted to insure the payment to

retiree of the refund of the contributions to the retirement fund and the money value of the accumulated vacation and sick leaves of s

official or employee.[27]

Nothing in the EPIRA justifies the grant of both the separation package and retirement benefits.

The EPIRA, a legislative enactment dealing specifically with the privatization of the electric power industry, provides:

SEC. 63. Separation Benefits of Officials and Employees of Affected Agencies. – National government employees displaced

separated from the service as a result of the restructuring of the [electric power] industry and privatization of NPC assets pursuant to

Act, shall be entitled to either a separation pay and other benefits in accordance with existing laws, rules or regulations or be entitle

avail of the privileges provided under a separation plan which shall be one and one- half month*s’+ salary for every year of service in

government: Provided, however, That those who avail of such privilege shall start their government service anew if absorbed by

government-owned successor company. In no case shall there be any diminution of benefits under the separation plan until the

implementation of the restructuring and privatization. x x x (Emphasis supplied)

A careful reading of Section 63 of the EPIRA affirms that said law did not authorize the grant of both separation pay and retirement bene

Indeed, the option granted was either to “a separation pay and other benefits in accordance with existing laws, rules and regulations” o“a separation plan which shall be one and one-half months’ salary for every year of service in the government”. The options w

alternative, not cumulative. Having chosen the separation plan, they cannot now claim additional retirement benefits under CA No. 186.

This position finds further support in Section 3(f), Rule 33 of RA No. 9136’s Implementing Rules and Regulations, which provides:

(f) likewise, “separation” or “displacement” refers to the severance of employment of any official or employee, who is neither qual

under existing laws, rules and regulations nor has opted to retire under existing laws, as a result of the restructuring of the electric po

industry or privatization of NPC assets pursuant to the act.

As worded, Rule 33, Section 3(f) of the Implementing Rules and Regulations of RA No. 9136 precludes the receipt of both separation

retirement benefits. A separated or displaced employee, as defined by the implementing rules, does not include one who is qualified or

opted to retire under existing laws. Consequently, a separated employee must choose between retirement under applicable law

separation pay under the EPIRA.

Within the context of reorganization, petitioners cannot claim a vested right over their retirement benefits.

Petitioners claim that having religiously paid their premiums, they have vested rights to their retirement gratuities which may no

revoked or impaired. However, petitioners fail to consider that under the retirement laws that they themselves invoke, separation from

service, whether voluntary or involuntary, is a distinct compensable event from retirement.[28] Nothing in said laws permits an employe

claim both separation pay and retirement benefits in the event of separation from the service due to reorganization.

Thus, absent an express provision of law to the contrary, separation due to reorganization gives rise to two possible scenarios: f

when the separated employee is not yet entitled to retirement benefits, second, when the employee is qualified to retire. In the first c

the employee’s separation pay shall be computed based on the period of service rendered in the government prior to the reorganization

the second case, where an employee is qualified to retire, he or she may opt to claim separation or retirement benefits.



Contradistinction with Laraño v. Commission on Audit

We are, of course, aware that in Laraño v. Commission on Audit[29] we held that employees, who were separated from the service beca

of the reorganization of the Metropolitan Waterworks and Sewerage System (MWSS) and Local Waterworks and Utilities Administra

(LWUA) pursuant to RA No. 8041, were entitled to both a separation package and retirement benefits.[30]

In Laraño, however, the Early Retirement Incentive Plan submitted to and approved by then President Fidel V. Ramos explicitly provided

a separation package that would be given over and above the existing retirement benefits. Therein lies the fundamental difference. He

unlike in this case, there was specific authority for the grant of both separation pay and retirement benefits.

WHEREFORE, the petition is DENIED. The Decision dated December 23, 2004 of the Regional Trial Court of Quezon City, Branch 101 in

No. Q-03-50681 holding that petitioners are not entitled to receive retirement benefits under Commonwealth Act No. 186, as amende

AFFIRMED with MODIFICATION that petitioners are entitled to a refund of their contributions to the retirement fund, and the mone

value of any accumulated vacation and sick leaves.

[G.R. No. L-26608. March 31, 1971.]

PEDRO G. PERALTA, Petitioner, v. AUDITOR GENERAL ISMAEL MATHAY, Respondent.

Pedro G. Peralta in his own behalf.

Solicitor General Antonio P. Barredo, Assistant Solicitor General Felicisimo R. Rosete and Solicitor Bernardo P. Pardo for Respondent.

SYLLABUS

1. POLITICAL LAW; ACCOUNTABILITY OF PUBLIC OFFICERS; PROHIBITION’ AGAINST DOUBLE COMPENSATION. — It is expressly provide

the Constitution: "No officer or employee of the government shall receive additional or double compensation unless specifically authori

by law." This is to manifest a commitment to the fundamental principle that a public office is a public trust. It is expected of a governm

official or employee that he keeps uppermost in mind the demands of public welfare. He is there to render public service. He is of co

entitled to be rewarded for the performance of the functions entrusted to him, but that should not be the overriding consideration.

intrusion of the thought of private gain should be unwelcome. The temptation to further personal ends, public employment as a means

the acquisition of wealth, is to be resisted. That at least is the ideal. There is then to be an awareness on the part of an officer or employethe government that he is to receive only such compensation as may be fixed by law. With such a realization, he is expected not to a

himself of devious or circuitous means to increase the remuneration attached to his position. It is an entirely different matter if

legislative body would itself determine for reasons satisfactory to it that he should receive something more. If it were to be thus tho

there must be a law to that effect. So the Constitution decrees.

2. ID.; ID.; ID.; APPLICATION; GSIS OFFICERS. — As is expressly declared in the Constitution, the Civil Service is to embrace "all branches

subdivisions of the Government * * *." Conformably to the above, the Philippine Civil Service, by law, includes ‘’all branches, subdivisions

instrumentalities of the Government, including government-owned or controlled corporations . . . ." Petitioner has not disputed, nor can

dispute that as a trustee, he was an officer of the government, the GSIS having been established in order "to promote the efficiency

welfare of the employees of the Government of the Philippines and to replace the [then] pension systems established in [previ ous acts+.such officer, petitioner cannot receive additional or double compensation unless specifically authorized by law.

3. ID.; ID.; ID.; PER DIEM; INCLUDED. — Under the GSIS Act. petitioner is entitled as trustee "to a per diem of P25.00 for each day of acat tendance in session." As in the case of government controlled corporations, the term ‘’per diems" was used in the sense the c ompensa

or remuneration attached to the office of Trustee. Such is not the meaning usually attached to it. So it was noted in Lexal Laboratorie

National Chemical Industries Workers Union, (L-24632, October 26, 1968, 25 SCRA 668). A "per diem" is commonly identified with the d

allowance "for each day he (an officer or employee) was away from his home base." Its usual signification is thus that a reimbursemen

expenses incurred in the performance of one’s duties. If employ in a statute, as in this case, in the concept of remuneration , however, th

must be, to justify an additional compensation, a specific law that so provides. Otherwise, fidelity to the constitutional command is lackin

4. ID.; ID.; ID.; COST OF LIVING ALLOWANCE, INCLUDED.— A similar approach is called for in determining the nature of a cost of liv

allowance. If it could rightfully be considered as in the nature of a reimbursement rather than additional emoluments or perquisites, t

the ruling of respondent Auditor General cannot find support in the Constitution. What was said in an American State decision

relevance. It was therein categorically stated "that it is universally held that an allowance for expenses incident to the discharge of

duties of office is not an increase of salary, a perquisite, nor an emolument of office." To the same effect is this excerpt appearing later in







D E C I S I O N

CRUZ, J.:

The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner Haydee B. Yorac as Ac

Chairman of the Commission on Elections, in place of Chairman Hilario B. Davide, who had been named chairman of the fact-find

commission to investigate the December 1989 coup d' etat attempt.

The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the power of the Presiden

the Philippines to make the challenged designation in view of the status of the Commission on Elections as an independent constitutio

body and the specific provision of Article IX-C, Section 1(2) of the Constitution that "(I)n no case shall any Member (of the Commission

Elections) be appointed or designated in a temporary or acting capacity."

The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino designated the Solic

General as acting member of the Commission on Elections and the Court revoked the designation as contrary to the Constitution. It is a

alleged that the respondent is not even the senior member of the Commission on Elections, being outranked by Associate Commissio

Alfredo E. Abueg, Jr.:-cralaw

The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal matter that should be reso

by the members themselves and that the intrusion of the President of the Philippines violates their independence. He cites the practice in

Court, where the senior Associate Justice serves as Acting Chief Justice in the absence of the Chief Justice. No designation from the Presid

of the Philippines is necessary.

In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme Court because the tempor

succession cited is provided for in Section 12 of the Judiciary Act of 1948. A similar rule is found in Section 5 of BP 129 for the Court

Appeals. There is no such arrangement, however, in the case of the Commission on Elections. The designation made by the Presi dent of

Philippines should therefore be sustained for reasons of "administrative expediency," to prevent disruption of the functions of the COMEL

Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the Commission on Elections w

have been disturbed or stalemated if the President of the Philippines had not stepped in and designated an Acting Chairman. There did

seem to be any such problem. In any event, even assuming that difficulty, we do not agree that "only the President (could) act to fill

hiatus," as the Solicitor General maintains.

Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as "independent." Although essent

executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions. Eac

these Commissions conducts its own proceedings under the applicable laws and its own rules and in the exercise of its own discretion

decisions, orders and rulings are subject only to review on Certiorari by this Court as provided by the Constitution in Article IX-A, Section 7

The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That discretion cannot be exerci

for it, even with its consent, by the President of the Philippines.

A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be establishe

justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may

withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, hav

accepted such designation, will not be estopped from challenging its withdrawal.chanrobles virtual law library

It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her permanent position as Assoc

Commissioner. It is no less true, however, that she can be replaced as Acting Chairman, with or without cause, and thus deprived of

powers and perquisites of that temporary position.

The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the void by extending

temporary designation in favor of the respondent. This is still a government of laws and not of men. The problem allegedly sought to

corrected, if it existed at all, did not call for presidential action. The situation could have been handled by the members of the Commission

Elections themselves without the participation of the President, however well-meaning.

In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been guided by the seniority r

as they themselves would have appreciated it. In any event, that choice and the basis thereof were for them and not the President to mak



The Court has not the slightest doubt that the President of the Philippines was moved only by the best of motives when she issued

challenged designation. But while conceding her goodwill, we cannot sustain her act because it conflicts with the Constitution. Hence, e

as this Court revoked the designation in the Bautista case, so too must it annul the designation in the case at bar.

The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the securi

tenure of its members. That guaranty is not available to the respondent as Acting Chairman of the Commission on Elections by designa

of the President of the Philippines.

WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting Chairman of the Commission

Elections is declared UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from serving as such. This is without prejudicthe incumbent Associate Commissioners of the Commission on Elections restoring her to the same position if they so desire, or choos

another member in her place, pending the appointment of a permanent Chairman by the President of the Philippines with the consent of

Commission on Appointments.: rd

SO ORDERED.

G.R. No. 100113 September 3, 1991

RENATO CAYETANO, petitioner,

vs.

CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacit

Secretary of Budget and Management, respondents.

Renato L. Cayetano for and in his own behalf.

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

PARAS, J.:p

We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in

case would indubitably have a profound effect on the political aspect of our national existence.

The 1987 Constitution provides in Section 1 (1), Article IX-C:

There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be natural-born citizens of

Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a college degree, and must not have b

candidates for any elective position in the immediately preceding -elections. However, a majority thereof, including the Chairman, sha

members of the Philippine Bar who have been engaged in the practice of law for at least ten years. (Emphasis supplied)

The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides:

There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-b

citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree. Howeve

majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of law for at le

ten years.' (Emphasis supplied)

Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appoin

office.

Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the interest of another

his consent. It is not limited to appearing in court, or advising and assisting in the conduct of litigation, but embraces the preparatio

pleadings, and other papers incident to actions and special proceedings, conveyancing, the preparation of legal instruments of all kinds,

the giving of all legal advice to clients. It embraces all advice to clients and all actions taken for them in matters connected with the law

attorney engages in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describ

himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation, and fixing

collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)



The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N

650) A person is also considered to be in the practice of law when he:

.. for valuable consideration engages in the business of advising person, firms, associations or corporations as to their rights under the

or appears in a representative capacity as an advocate in proceedings pending or prospective, before any court, commissioner, refe

board, body, committee, or commission constituted by law or authorized to settle controversies and there, in such representative capa

performs any act or acts for the purpose of obtaining or defending the rights of their clients under the law. Otherwise stated, one who,

representative capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs any ac

acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S. Dudley and Co.,

S.W. 2d 895, 340 Mo. 852)

This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:

The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings and other pap

incident to actions and special proceedings, the management of such actions and proceedings on behalf of clients before judges and cou

and in addition, conveying. In general, all advice to clients, and all action taken for them in matters connected with the law incorpora

services, assessment and condemnation services contemplating an appearance before a judicial body, the foreclosure of a mortg

enforcement of a creditor's claim in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters

estate and guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where the w

done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263). (Emph

supplied)

Practice of law under modem conditions consists in no small part of work performed outside of any court and having no immediate rela

to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety of subjects, and the preparation

execution of legal instruments covering an extensive field of business and trust relations and other affairs. Although these transactions m

have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspec

high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situatio

These customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the courts.

valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of the work of the lawyer w

involves appearance in court and that part which involves advice and drafting of instruments in his office. It is of importance to the wel

of the public that these manifold customary functions be performed by persons possessed of adequate learning and skill, of sound m

character, and acting at all times under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the R

of Court, Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar Assoc. v. Automo

Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of

practice of law in even broader terms as advocacy, counselling and public service.

One may be a practicing attorney in following any line of employment in the profession. If what he does exacts knowledge of the law an

of a kind usual for attorneys engaging in the active practice of their profession, and he follows some one or more lines of employment s

as this he is a practicing attorney at law within the meaning of the statute. (Barr v. Cardell, 155 NW 312)

Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training

experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice

is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill." (111 ALR

The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of law

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during our review of the provisions on

Commission on Audit. May I be allowed to make a very brief statement?

THE PRESIDING OFFICER (Mr. Jamir).

The Commissioner will please proceed.

MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit. Among others, the qualifications provided fo

Section I is that "They must be Members of the Philippine Bar" — I am quoting from the provision — "who have been engaged in

practice of law for at least ten years".





lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not [be] stress[ed] that in law, a

medicine, surgery should be avoided where internal medicine can be effective." (Business Star, "Corporate Finance Law," Jan. 11, 1989, p

In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different le

doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyer

specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as

practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a cl

before an administrative agency. (Wolfram, supra, p. 687).

By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types — a litigator who specializes in

work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer skilclient counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of evaluation

mediation are both effective for many clients and a source of employment. (Ibid.).

Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretica

so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of prosecu

In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is organized int

social unit to perform that work. The most common of these roles are those of corporate practice and government legal service. (Ibid.).

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

the traditional concept of practice of law.

We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers and ot

professional groups, in particular those members participating in various legal-policy decisional contexts, are finding that understanding

major emerging trends in corporation law is indispensable to intelligent decision-making.

Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and implications of

corporate law research function accompanied by an accelerating rate of information accumulation. The recognition of the need for s

improved corporate legal policy formulation, particularly "model-making" and "contingency planning," has impressed upon us

inadequacy of traditional procedures in many decisional contexts.

In a complex legal problem the mass of information to be processed, the sorting and weighing of significant conditional factors,

appraisal of major trends, the necessity of estimating the consequences of given courses of action, and the need for fast decision

response in situations of acute danger have prompted the use of sophisticated concepts of information flow theory, operational anal

automatic data processing, and electronic computing equipment. Understandably, an improved decisional structure must stress

predictive component of the policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to projected alternative courses of action in terms of futuristic effects flowing therefrom.

Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the subject of corpo

finance law has received relatively little organized and formalized attention in the philosophy of advancing corporate legal educat

Nonetheless, a cross-disciplinary approach to legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved through an e

introduction to multi-variable decisional context and the various approaches for handling such problems. Lawyers, particularly with eith

master's or doctorate degree in business administration or management, functioning at the legal policy level of decision-making now h

some appreciation for the concepts and analytical techniques of other professions which are currently engaged in similar types of comp

decision-making.

Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney because of the complegal implications that arise from each and every necessary step in securing and maintaining the business issue raised. (Business S

"Corporate Finance Law," Jan. 11, 1989, p. 4).

In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the "big-time" law

earning big money and with a clientele composed of the tycoons and magnates of business and industry.

Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer does. For one,

number of attorneys employed by a single corporation will vary with the size and type of the corporation. Many smaller and some la

corporations farm out all their legal problems to private law firms. Many others have in-house counsel only for certain matters. O

corporation have a staff large enough to handle most legal problems in-house.





First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking regarding both plann

and pressing immediate problems. An understanding of the role of feedback loops, inventory levels, and rates of flow, enable users

simulate all sorts of systematic problems — physical, economic, managerial, social, and psychological. New programming techniques n

make the system dynamics principles more accessible to managers — including corporate counsels. (Emphasis supplied)

Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the context of a

department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement, and minimize the cost and

involved in managing a portfolio of cases. (Emphasis supplied)

Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators in all landsnegotiations. All integrated set of such tools provide coherent and effective negotiation support, including hands-on on instruction in th

techniques. A simulation case of an international joint venture may be used to illustrate the point.

[Be this as it may,] the organization and management of the legal function, concern three pointed areas of consideration, thus:

Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's responsibilities. T

differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of legal trouble and maximizing legal rig

for such legal entities at that time when transactional or similar facts are being considered and made.

Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which legal consequen

attach. It needs to be directly supportive of this nation's evolving economic and organizational fabric as firms change to stay competitiv

a global, interdependent environment. The practice and theory of "law" is not adequate today to facilitate the relationships needed in tr

to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade as one of the m

vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects of the firm's strategic issues, includ

structuring its global operations, managing improved relationships with an increasingly diversified body of employees, managing expan

liability exposure, creating new and varied interactions with public decision-makers, coping internally with more complex make or

decisions.

This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general corporate counsel no

give him a full sense of how the legal system shapes corporate activities. And even if the corporate lawyer's aim is not the understand a

the law's effects on corporate activities, he must, at the very least, also gain a working knowledge of the management issues if only to

able to grasp not only the basic legal "constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," A

10, 1991, p. 4).

The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law affecting each aspec

their work. Yet, many would admit to ignorance of vast tracts of the financial law territory. What transpires next is a dilemma

professional security: Will the lawyer admit ignorance and risk opprobrium?; or will he feign understanding and risk exposure? (Busi

Star, "Corporate Finance law," Jan. 11, 1989, p. 4).

Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a le

received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because alleg

Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years.

On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18, 1991

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

Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen

taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of Mon

as Chairman of the Commission on Elections be declared null and void.

Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has b

a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his professional lice

fees as lawyer for more than ten years. (p. 124, Rollo)

After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his fath er. During

stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama, wh

involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project work of

Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an investment b





It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied, the Commission

no alternative but to attest to the appointment in accordance with the Civil Service Law. The Commission has no authority to revoke

appointment on the ground that another person is more qualified for a particular position. It also has no authority to direct the appointm

of a substitute of its choice. To do so would be an encroachment on the discretion vested upon the appointing authority. An appointmen

essentially within the discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess

qualifications required by law. ( Emphasis supplied)

The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by

Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on Appointments o

certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking, posting of bond, etc.

(Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)

The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on Elect

is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:

The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on Appointments for a term

seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for five ye

and the last Members for three years, without reappointment. Appointment to any vacancy shall be only for the unexpired term of

predecessor. In no case shall any Member be appointed or designated in a temporary or acting capacity.

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the traditional or stereoty

notion of law practice, as distinguished from the modern concept of the practice of law, which modern connotation is exactly what

intended by the eminent framers of the 1987 Constitution. Moreover, Justice Padilla's definition would require generally a habitual

practice, perhaps practised two or three times a week and would outlaw say, law practice once or twice a year for ten consecutive ye

Clearly, this is far from the constitutional intent.

Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I ma de use of a definition of law prac

which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of law." Tr

cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional areas of

practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined.

Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, o

advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that

Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts of pers

practising law, without first becoming lawyers.

Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, o n the ground that he la

one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the President? A

even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President?

We now proceed:

The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined tha

possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such

acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lac

excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court inter

with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power, since no abu

much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the issuance of the w

prayed, for has been clearly shown.

Additionally, consider the following:

(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the Commission, and

in effect confirm the appointment? Clearly, the answer is in the negative.

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

(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirm a Presidential nominee, it wo

be incredible that the U.S. Supreme Court would still reverse the U.S. Senate.

Finally, one significant legal maxim is:



We must interpret not by the letter that killeth, but by the spirit that giveth life.

Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for hel

capturing Samson. Delilah agreed on condition that —

No blade shall touch his skin;

No blood shall flow from his veins.

When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches awfrom in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself w

anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any blade to

his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the agreement.

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

G.R. No. 149036 April 2, 2002

MA. J. ANGELINA G. MATIBAG, petitioner,

vs.

ALFREDO L. BENIPAYO, RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., VELMA J. CINCO, and GIDEON C. DE GUZMAN in his capa

as Officer-In-Charge, Finance Services Department of the Commission on Elections, respondents.

CARPIO, J.:

The Case

Before us is an original Petition for Prohibition with prayer for the issuance of a writ of preliminary injunction and a temporary restrain

order under Rule 65 of the 1997 Rules of Civil Procedure. Petitioner Ma. J. Angelina G. Matibag ("Petitioner" for brevity) questions

constitutionality of the appointment and the right to hold office of the following: (1) Alfredo L. Benipayo ("Benipayo" for brevity

Chairman of the Commission on Elections ("COMELEC" for brevity); and (2) Resurreccion Z. Borra ("Borra" for brevity) and Florentin

Tuason, Jr. ("Tuason" for brevity) as COMELEC Commissioners. Petitioner also questions the legality of the appointment of Velma J. Cin

("Cinco" for brevity) as Director IV of the COMELEC’s Education and Information Depar tment ("EID" for brevity).

The Facts

On February 2, 1999, the COMELEC en banc appointed petitioner as "Acting Director IV" of the EID. On February 15, 2000, then Chairper

Harriet O. Demetriou renewed the appointment of petitioner as Director IV of EID in a "Temporary" capacity. On February 15, 20

Commissioner Rufino S.B. Javier renewed again the appointment of petitioner to the same position in a "Temporary" capacity.2

On March 22, 2001, President Gloria Macapagal Arroyo appointed, ad interim, Benipayo as COMELEC Chairman,3 and Borra4 and Tuas

as COMELEC Commissioners, each for a term of seven years and all expiring on February 2, 2008. Benipayo took his oath of office

assumed the position of COMELEC Chairman. Borra and Tuason likewise took their oaths of office and assumed their positions as COME

Commissioners. The Office of the President submitted to the Commission on Appointments on May 22, 2001 the ad interim appointment

Benipayo, Borra and Tuason for confirmation.6 However, the Commission on Appointments did not act on said appointments.

On June 1, 2001, President Arroyo renewed the ad interim appointments of Benipayo, Borra and Tuason to the same positions and for

same term of seven years, expiring on February 2, 2008.7 They took their oaths of office for a second time. The Office of the Presidtransmitted on June 5, 2001 their appointments to the Commission on Appointments for confirmation.8

Congress adjourned before the Commission on Appointments could act on their appointments. Thus, on June 8, 2001, President Macapa

Arroyo renewed again the ad interim appointments of Benipayo, Borra and Tuason to the same positions.9 The Office of the Presid

submitted their appointments for confirmation to the Commission on Appointments.10 They took their oaths of office anew.

In his capacity as COMELEC Chairman, Benipayo issued a Memorandum dated April 11, 200111 addressed to petitioner as Director IV of

EID and to Cinco as Director III also of the EID, designating Cinco Officer-in-Charge of the EID and reassigning petitioner to the L

Department. COMELEC EID Commissioner-in-Charge Mehol K. Sadain objected to petitioner’s reassignment in a Memorandum dated A

14, 200112 addressed to the COMELEC en banc. Specifically, Commissioner Sadain questioned Benipayo’s failure to consult

Commissioner-in-Charge of the EID in the reassignment of petitioner.



On April 16, 2001, petitioner requested Benipayo to reconsider her relief as Director IV of the EID and her reassignment to the

Department.13 Petitioner cited Civil Service Commission Memorandum Circular No. 7 dated April 10, 2001, reminding heads of governm

offices that "transfer and detail of employees are prohibited during the election period beginning January 2 until June 13, 2001." Benip

denied her request for reconsideration on April 18, 2001,14 citing COMELEC Resolution No. 3300 dated November 6, 2000, which state

part:

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election C

and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire

employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functi

during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before elect

day shall be effected after due notice and hearing."

Petitioner appealed the denial of her request for reconsideration to the COMELEC en banc in a Memorandum dated April 23, 2001

Petitioner also filed an administrative and criminal complaint16 with the Law Department17 against Benipayo, alleging that

reassignment violated Section 261 (h) of the Omnibus Election Code, COMELEC Resolution No. 3258, Civil Service Memorandum Circular

07, s. 001, and other pertinent administrative and civil service laws, rules and regulations.

During the pendency of her complaint before the Law Department, petitioner filed the instant petition questioning the appointment and

right to remain in office of Benipayo, Borra and Tuason, as Chairman and Commissioners of the COMELEC, respectively. Petitioner cla

that the ad interim appointments of Benipayo, Borra and Tuason violate the constitutional provisions on the independence of the COMEL

as well as on the prohibitions on temporary appointments and reappointments of its Chairman and members. Petitioner also assail

illegal her removal as Director IV of the EID and her reassignment to the Law Department. Simultaneously, petitioner challenges

designation of Cinco as Officer-in-Charge of the EID. Petitioner, moreover, questions the legality of the disbursements made by COME

Finance Services Department Officer-in-Charge Gideon C. De Guzman to Benipayo, Borra and Tuason by way of salaries and o

emoluments.

In the meantime, on September 6, 2001, President Macapagal Arroyo renewed once again the ad interim appointments of Benipay

COMELEC Chairman and Borra and Tuason as Commissioners, respectively, for a term of seven years expiring on February 2, 2008.18 T

all took their oaths of office anew.

The Issues

The issues for resolution of this Court are as follows:

1. Whether or not the instant petition satisfies all the requirements before this Court may exercise its power of judicial review

constitutional cases;

2. Whether or not the assumption of office by Benipayo, Borra and Tuason on the basis of the ad interim appointments issued by

President amounts to a temporary appointment prohibited by Section 1 (2), Article IX-C of the Constitution;

3. Assuming that the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason are legal, whethe

not the renewal of their ad interim appointments and subsequent assumption of office to the same positions violate the prohibition

reappointment under Section 1 (2), Article IX-C of the Constitution;

4. Whether or not Benipayo’s removal of petitioner from her position as Director IV of the EID and her reassignment to the Law Departm

is illegal and without authority, having been done without the approval of the COMELEC as a collegial body;

5. Whether or not the Officer-in-Charge of the COMELEC’s Finance Services Department, in continuing to make disbursements in favo

Benipayo, Borra, Tuason and Cinco, is acting in excess of jurisdiction.

First Issue: Propriety of Judicial Review

Respondents assert that the petition fails to satisfy all the four requisites before this Court may exercise its power of judicial review

constitutional cases. Out of respect for the acts of the Executive department, which is co-equal with this Court, respondents urge this Co

to refrain from reviewing the constitutionality of the ad interim appointments issued by the President to Benipayo, Borra and Tuason un

all the four requisites are present. These are: (1) the existence of an actual and appropriate controversy; (2) a personal and substan

interest of the party raising the constitutional issue; (3) the exercise of the judicial review is pleaded at the earliest opportunity; and (4)

constitutional issue is the lis mota of the case.19Respondents argue that the second, third and fourth requisites are absent in this ca

Respondents maintain that petitioner does not have a personal and substantial interest in the case because she has not sustained a di

injury as a result of the ad interim appointments of Benipayo, Borra and Tuason and their assumption of office. Respondents point out t







the meaning nor the use intended in the context of Philippine law. In referring to Dr. Esteban’s appointments, th e term is not descriptiv

the nature of the appointments given to him. Rather, it is used to denote the manner in which said appointments were made, that is, d

by the President of the Pamantasan in the meantime, while the Board of Regents, which is originally vested by the University Charter w

the power of appointment, is unable to act. x x x." (Emphasis supplied)

Thus, the term "ad interim appointment", as used in letters of appointment signed by the President, means a permanent appointment m

by the President in the meantime that Congress is in recess. It does not mean a temporary appointment that can be withdrawn or revoke

any time. The term, although not found in the text of the Constitution, has acquired a definite legal meaning under Philippine jurispruden

The Court had again occasion to explain the nature of an ad interim appointment in the more recent case of Marohombsar vs. Cour

Appeals,28 where the Court stated:

"We have already mentioned that an ad interim appointment is not descriptive of the nature of the appointment, that is, it is not indica

of whether the appointment is temporary or in an acting capacity, rather it denotes the manner in which the appointment was made. In

instant case, the appointment extended to private respondent by then MSU President Alonto, Jr. was issued without condition nor limita

as to tenure. The permanent status of private respondent’s appointment as Executive Assistant II was recognized and attested to by the

Service Commission Regional Office No. 12. Petitioner’s submission that private respondent’s ad interim appointment is synonymous wit

temporary appointment which could be validly terminated at any time is clearly untenable. Ad interim appointments are permanent

their terms are only until the Board disapproves them." (Emphasis supplied)

An ad interim appointee who has qualified and assumed office becomes at that moment a government employee and therefore part of

civil service. He enjoys the constitutional protection that "[n]o officer or employee in the civil service shall be removed or suspended exc

for cause provided by law."29 Thus, an ad interim appointment becomes complete and irrevocable once the appointee has qualified

office. The withdrawal or revocation of an ad interim appointment is possible only if it is communicated to the appointee before the mom

he qualifies, and any withdrawal or revocation thereafter is tantamount to removal from office.30 Once an appointee has qualified

acquires a legal right to the office which is protected not only by statute but also by the Constitution. He can only be removed for ca

after notice and hearing, consistent with the requirements of due process.

An ad interim appointment can be terminated for two causes specified in the Constitution. The first cause is the disapproval of his ad inte

appointment by the Commission on Appointments. The second cause is the adjournment of Congress without the Commission

Appointments acting on his appointment. These two causes are resolutory conditions expressly imposed by the Constitution on all ad inte

appointments. These resolutory conditions constitute, in effect, a Sword of Damocles over the heads of ad interim appointees. No o

however, can complain because it is the Constitution itself that places the Sword of Damocles over the heads of the ad interim appointees

While an ad interim appointment is permanent and irrevocable except as provided by law, an appointment or designation in a temporar

acting capacity can be withdrawn or revoked at the pleasure of the appointing power.31 A temporary or acting appointee does not en

any security of tenure, no matter how briefly. This is the kind of appointment that the Constitution prohibits the President from makingthe three independent constitutional commissions, including the COMELEC. Thus, in Brillantes vs. Yorac,32 this Court struck down

unconstitutional the designation by then President Corazon Aquino of Associate Commissioner Haydee Yorac as Acting Chairperson of

COMELEC. This Court ruled that:

"A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause need be establishe

justify its revocation. Assuming its validity, the designation of the respondent as Acting Chairman of the Commission on Elections may

withdrawn by the President of the Philippines at any time and for whatever reason she sees fit. It is doubtful if the respondent, hav

accepted such designation, will not be estopped from challenging its withdrawal.

x x x

The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among which is the securi

tenure of its members. That guarantee is not available to the respondent as Acting Chairman of the Commission on Elections by designaof the President of the Philippines."

Earlier, in Nacionalista Party vs. Bautista,33 a case decided under the 1935 Constitution, which did not have a provision prohibi

temporary or acting appointments to the COMELEC, this Court nevertheless declared unconstitutional the designation of the Solic

General as acting member of the COMELEC. This Court ruled that the designation of an acting Commissioner would undermine

independence of the COMELEC and hence violate the Constitution. We declared then: "It would be more in keeping with the intent, purp

and aim of the framers of the Constitution to appoint a permanent Commissioner than to designate one to act temporarily." (Emph

supplied)

In the instant case, the President did in fact appoint permanent Commissioners to fill the vacancies in the COMELEC, subject only

confirmation by the Commission on Appointments. Benipayo, Borra and Tuason were extended permanent appointments during the re

of Congress. They were not appointed or designated in a temporary or acting capacity, unlike Commissioner Haydee Yorac in Brillantes





Then COMELEC Chairperson Harriet O. Demetriou was appointed only on January 11, 2000 to serve, pursuant to her appointment pap

until February 15, 2002,41 the original expiry date of the term of her predecessor, Justice Bernardo P. Pardo, who was elevated to this Co

The original expiry date of the term of Commissioner Teresita Dy-Liacco Flores was also February 15, 2002, while that of Commissioner J

F. Desamito was November 3, 2001.42 The original expiry dates of the terms of office of Chairperson Demetriou and Commissioners Flo

and Desamito were therefore supposed to fall after the May 2001 elections. Suddenly and unexpectedly, because of the Gaminde ru

there were three vacancies in the seven-person COMELEC, with national elections looming less than three and one-half months away

their credit, Chairperson Demetriou and Commissioner Flores vacated their offices on February 2, 2001 and did not question any more bef

this Court the applicability of the Gaminde ruling to their own situation.

In a Manifestation43 dated December 28, 2000 filed with this Court in the Gaminde case, Chairperson Demetriou stated that she

vacating her office on February 2, 2001, as she believed any delay in choosing her successor might create a "constitutional crisis" in viethe proximity of the May 2001 national elections. Commissioner Desamito chose to file a petition for intervention44 in the Gaminde case

this Court denied the intervention. Thus, Commissioner Desamito also vacated his office on February 2, 2001.

During an election year, Congress normally goes on voluntary recess between February and June considering that many of the member

the House of Representatives and the Senate run for re-election. In 2001, the Eleventh Congress adjourned from January 9, 2001 to Jun

2001.45 Concededly, there was no more time for Benipayo, Borra and Tuason, who were originally extended ad interim appointments o

on March 22, 2001, to be confirmed by the Commission on Appointments before the May 14, 2001 elections.

If Benipayo, Borra and Tuason were not extended ad interim appointments to fill up the three vacancies in the COMELEC, there would

have been one division functioning in the COMELEC instead of two during the May 2001 elections. Considering that the Constitution requ

that "all x x x election cases shall be heard and decided in division",46 the remaining one division would have been swamped with elec

cases. Moreover, since under the Constitution motions for reconsideration "shall be decided by the Commission en banc", the mere abse

of one of the four remaining members would have prevented a quorum, a less than ideal situation considering that the Commissioners

expected to travel around the country before, during and after the elections. There was a great probability that disruptions in the conduc

the May 2001 elections could occur because of the three vacancies in the COMELEC. The successful conduct of the May 2001 natio

elections, right after the tumultuous EDSA II and EDSA III events, was certainly essential in safeguarding and strengthening our democrac

Evidently, the exercise by the President in the instant case of her constitutional power to make ad interim appointments prevented

occurrence of the very evil sought to be avoided by the second paragraph of Section 16, Article VII of the Constitution. This power to m

ad interim appointments is lodged in the President to be exercised by her in her sound judgment. Under the second paragraph of Section

Article VII of the Constitution, the President can choose either of two modes in appointing officials who are subject to confirmation by

Commission on Appointments. First, while Congress is in session, the President may nominate the prospective appointee, and pend

consent of the Commission on Appointments, the nominee cannot qualify and assume office. Second, during the recess of Congress,

President may extend an ad interim appointment which allows the appointee to immediately qualify and assume office.

Whether the President chooses to nominate the prospective appointee or extend an ad interim appointment is a matter within

prerogative of the President because the Constitution grants her that power. This Court cannot inquire into the propriety of the choice m

by the President in the exercise of her constitutional power, absent grave abuse of discretion amounting to lack or excess of jurisdiction

her part, which has not been shown in the instant case.

The issuance by Presidents of ad interim appointments to the COMELEC is a long-standing practice. Former President Corazon Aquino iss

an ad interim appointment to Commissioner Alfredo E. Abueg.47 Former President Fidel V. Ramos extended ad interim appointments

Commissioners Julio F. Desamito, Japal M. Guiani, Graduacion A. Reyes-Claravall and Manolo F. Gorospe.48 Former President Jos

Estrada also extended ad interim appointments to Commissioners Abdul Gani M. Marohombsar, Luzviminda Tancangco, Mehol K. Sad

and Ralph C. Lantion.49

T he President’s power to extend ad interim appointments may indeed briefly put the appointee at the mercy of both the appointi ng

confirming powers. This situation, however, is only for a short period - from the time of issuance of the ad interim appointment untilCommission on Appointments gives or withholds its consent. The Constitution itself sanctions this situation, as a trade-off against the ev

disruptions in vital government services. This is also part of the check-and-balance under the separation of powers, as a trade-off against

evil of granting the President absolute and sole power to appoint. The Constitution has wisely subjected the President’s appo inting powe

the checking power of the legislature.

This situation, however, does not compromise the independence of the COMELEC as a constitutional body. The vacancies in the COME

are precisely staggered to insure that the majority of its members hold confirmed appointments, and not one President will appoint all

COMELEC members.50 In the instant case, the Commission on Appointments had long confirmed four51 of the incumbent COME

members, comprising a majority, who could now be removed from office only by impeachment. The special constitutional safeguards

insure the independence of the COMELEC remain in place.52 The COMELEC enjoys fiscal autonomy, appoints its own officials and employ

and promulgates its own rules on pleadings and practice. Moreover, the salaries of COMELEC members cannot be decreased during t

tenure.



In fine, we rule that the ad interim appointments extended by the President to Benipayo, Borra and Tuason, as COMELEC Chairman

Commissioners, respectively, do not constitute temporary or acting appointments prohibited by Section 1 (2), Article IX-C of the Constitut

Third Issue: The Constitutionality of Renewals of Appointments

Petitioner also agues that assuming the first ad interim appointments and the first assumption of office by Benipayo, Borra and Tuason

constitutional, the renewal of the their ad interim appointments and their subsequent assumption of office to the same positions violate

prohibition on reappointment under Section 1 (2), Article IX-C of the Constitution, which provides as follows:

"The Chairman and the Commissioners shall be appointed by the President with the consent of the Commission on Appointments for a tof seven years without reappointment. Of those first appointed, three Members shall hold office for seven years, two Members for

years, and the last members for three years, without reappointment. X x x." (Emphasis supplied)

Petitioner theorizes that once an ad interim appointee is by-passed by the Commission on Appointments, his ad interim appointment can

longer be renewed because this will violate Section 1 (2), Article IX-C of the Constitution which prohibits reappointments. Petitioner asse

that this is particularly true to permanent appointees who have assumed office, which is the situation of Benipayo, Borra and Tuason if t

ad interim appointments are deemed permanent in character.

There is no dispute that an ad interim appointee disapproved by the Commission on Appointments can no longer be extended a n

appointment. The disapproval is a final decision of the Commission on Appointments in the exercise of its checking power on the appoint

authority of the President. The disapproval is a decision on the merits, being a refusal by the Commission on Appointments to give

consent after deliberating on the qualifications of the appointee. Since the Constitution does not provide for any appeal from such decis

the disapproval is final and binding on the appointee as well as on the appointing power. In this instance, the President can no longer ren

the appointment not because of the constitutional prohibition on reappointment, but because of a final decision by the Commission

Appointments to withhold its consent to the appointment.

An ad interim appointment that is by-passed because of lack of time or failure of the Commission on Appointments to organize is ano

matter. A by-passed appointment is one that has not been finally acted upon on the merits by the Commission on Appointments at the c

of the session of Congress. There is no final decision by the Commission on Appointments to give or withhold its consent to the appointm

as required by the Constitution. Absent such decision, the President is free to renew the ad interim appointment of a by-passed appoin

This is recognized in Section 17 of the Rules of the Commission on Appointments, which provides as follows:

"Section 17. Unacted Nominations or Appointments Returned to the President. Nominations or appointments submitted by the Presiden

the Philippines which are not finally acted upon at the close of the session of Congress shall be returned to the President and, unless n

nominations or appointments are made, shall not again be considered by the Commission." (Emphasis supplied)

Hence, under the Rules of the Commission on Appointments, a by-passed appointment can be considered again if the President renews

appointment.

It is well settled in this jurisdiction that the President can renew the ad interim appointments of by-passed appointees. Justice Robe

Concepcion, Jr. lucidly explained in his concurring opinion in Guevara vs. Inocentes53 why by-passed ad interim appointees could

extended new appointments, thus:

"In short, an ad interim appointment ceases to be effective upon disapproval by the Commission, because the incumbent can not conti

holding office over the positive objection of the Commission. It ceases, also, upon "the next adjournment of the Congress", simply beca

the President may then issue new appointments - not because of implied disapproval of the Commission deduced from its inaction du

the session of Congress, for, under the Constitution, the Commission may affect adversely the interim appointments only by action, neve

omission. If the adjournment of Congress were an implied disapproval of ad interim appointments made prior thereto, then the Presidcould no longer appoint those so by-passed by the Commission. But, the fact is that the President may reappoint them, thus cle

indicating that the reason for said termination of the ad interim appointments is not the disapproval thereof allegedly inferred from s

omission of the Commission, but the circumstance that upon said adjournment of the Congress, the President is free to make ad inte

appointments or reappointments." (Emphasis supplied)

Guevara was decided under the 1935 Constitution from where the second paragraph of Section 16, Article VII of the present Constitution

ad interim appointments was lifted verbatim.54 The jurisprudence under the 1935 Constitution governing ad interim appointments by

President is doubtless applicable to the present Constitution. The established practice under the present Constitution is that the Presid

can renew the appointments of by-passed ad interim appointees. This is a continuation of the well-recognized practice under the 1

Constitution, interrupted only by the 1973 Constitution which did not provide for a Commission on Appointments but vested sole appoin

power in the President.





appointments because most of her appointees will effectively be disapproved by mere inaction of the Commission on Appointments. This

nullify the constitutional power of the President to make ad interim appointments, a power intended to avoid disruptions in v

government services. This Court cannot subscribe to a proposition that will wreak havoc on vital government services.

The prohibition on reappointment is common to the three constitutional commissions. The framers of the present Constitution prohib

reappointments for two reasons. The first is to prevent a second appointment for those who have been previously appointed and confirm

even if they served for less than seven years. The second is to insure that the members of the three constitutional commissions do not se

beyond the fixed term of seven years. As reported in the Journal of the Constitutional Commission, Commissioner Vicente B. Foz, w

sponsored58the proposed articles on the three constitutional commissions, outlined the four important features of the proposed articles

wit:

"Mr. Foz stated that the Committee had introduced basic changes in the common provision affecting the three Constitutional Commissio

and which are: 1) fiscal autonomy which provides (that) appropriations shall be automatically and regularly released to the Commissio

the same manner (as) provided for the Judiciary; 2) fixed term of office without reappointment on a staggered basis to ensure continuit

functions and to minimize the opportunity of the President to appoint all the members during his incumbency; 3) prohibition to decre

salaries of the members of the Commissions during their term of office; and 4) appointments of members would not req

confirmation."59 (Emphasis supplied)

There were two important amendments subsequently made by the Constitutional Commission to these four features. First, as discus

earlier, the framers of the Constitution decided to require confirmation by the Commission on Appointments of all appointments to

constitutional commissions. Second, the framers decided to strengthen further the prohibition on serving beyond the fixed seven-year te

in the light of a former chair of the Commission on Audit remaining in office for 12 years despite his fixed term of seven years. The follow

exchange in the deliberations of the Constitutional Commission is instructive:

"MR. SUAREZ: These are only clarificatory questions, Madam President. May I call the sponsor’s attention, first of all, to Section 2 (2) on

Civil Service Commission wherein it is stated: "In no case shall any Member be appointed in a temporary or acting capacity." I detect in

Committee’s proposed resolutions a constitutional hangover, if I may use the term, from the past administration. Am I correct in conclu

that the reason the Committee introduced this particular provision is to avoid an incident similar to the case of the Honorable Franci

Tantuico who was appointed in an acting capacity as Chairman of the Commission on Audit for about 5 years from 1975 until 1980, and t

in 1980, was appointed as Chairman with a tenure of another 7 years. So, if we follow that appointment to (its) logical conclusion,

occupied that position for about 12 years in violation of the Constitution?

MR. FOZ: It is only one of the considerations. Another is really to make sure that any member who is appointed to any of the commissi

does not serve beyond 7 years."60 (Emphasis supplied)

Commissioner Christian Monsod further clarified the prohibition on reappointment in this manner:

"MR. MONSOD. If the (Commissioner) will read the whole Article, she will notice that there is no reappointment of any kind and, therefor

a whole there is no way that somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this d

not happen by including in the appointment both temporary and acting capacities."61 (Emphasis supplied)

Plainly, the prohibition on reappointment is intended to insure that there will be no reappointment of any kind. On the other hand,

prohibition on temporary or acting appointments is intended to prevent any circumvention of the prohibition on reappointment that m

result in an appointee’s total term of office exceeding seven years. The evils sought to be avoided by the twin prohibitions are very spec

reappoint ment of any kind and exceeding one’s term in office beyond the maximum period of seven years.

Not contented with these ironclad twin prohibitions, the framers of the Constitution tightened even further the screws on those who mi

wish to extend their terms of office. Thus, the word "designated" was inserted to plug any loophole that might be exploited by violator

the Constitution, as shown in the following discussion in the Constitutional Commission:

"MR. DE LOS REYES: On line 32, between the words "appointed" and "in", I propose to insert the words OR DESIGNATED so that the wh

sentence will read: "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity."

THE PRESIDING OFFICER (Mr. Trenas): What does the Committee say?

MR. FOZ: But it changes the meaning of this sentence. The sentence reads: "In no case shall any Member be appointed in a temporary

acting capacity."

MR. DE LOS REYES: Mr. Presiding Officer, the reason for this amendment is that some lawyers make a distinction between an appointm

and a designation. The Gentleman will recall that in the case of Commissioner on Audit Tantuico, I think his term exceeded the constituti

limit but the Minister of Justice opined that it did not because he was only designated during the time that he acted as Commissione



Audit. So, in order to erase that distinction between appointment and designation, we should specifically place the word so that there wi

no more ambiguity. "In no case shall any Member be appointed OR DESIGNATED in a temporary or acting capacity."

MR. FOZ: The amendment is accepted, Mr. Presiding Officer.

MR. DE LOS REYES: Thank you.

THE PRESIDING OFFICER (Mr. Trenas): Is there any objection? (Silence) The Chair hears none; the amendment is approved."62

The ad interim appointments and subsequent renewals of appointments of Benipayo, Borra and Tuason do not violate the prohibition

reappointments because there were no previous appointments that were confirmed by the Commission on Appointments. A reappointmpresupposes a previous confirmed appointment. The same ad interim appointments and renewals of appointments will also not bre ach

seven-year term limit because all the appointments and renewals of appointments of Benipayo, Borra and Tuason are for a fixed te

expiring on February 2, 2008.63 Any delay in their confirmation will not extend the expiry date of their terms of office. Consequently, the

no danger whatsoever that the renewal of the ad interim appointments of these three respondents will result in any of the evils intende

be exorcised by the twin prohibitions in the Constitution. The continuing renewal of the ad interim appointment of these three responde

for so long as their terms of office expire on February 2, 2008, does not violate the prohibition on reappointments in Section 1 (2), Article

of the Constitution.

Fourth Issue: Respondent Benipayo’s Authority to Reassign Petitioner

Petitioner claims that Benipayo has no authority to remove her as Director IV of the EID and reassign her to the Law Department. Petitio

further argues that only the COMELEC, acting as a collegial body, can authorize such reassignment. Moreover, petitioner maint ains th

reassignment without her consent amounts to removal from office without due process and therefore illegal.

Petitioner’s posturing will hold water if Benipayo does not possess any color of title to the office of Chairman of the COMEL EC. We h

ruled, however, that Benipayo is the de jure COMELEC Chairman, and consequently he has full authority to exercise all the powers of t

office for so long as his ad interim appointment remains effective. Under Section 7 (4), Chapter 2, Subtitle C, Book V of the Revi

Administrative Code, the Chairman of the COMELEC is vested with the following power:

"Section 7. Chairman as Executive Officer; Powers and Duties. The Chairman, who shall be the Chief Executive Officer of the Commiss

shall:

x x x

(4) Make temporary assignments, rotate and transfer personnel in accordance with the provisions of the Civil Service Law." (Emphsupplied)

The Chairman, as the Chief Executive of the COMELEC, is expressly empowered on his own authority to transfer or reassign COME

personnel in accordance with the Civil Service Law. In the exercise of this power, the Chairman is not required by law to secure the appr

of the COMELEC en banc.

Petitioner’s appointment papers dated February 2, 1999, February 15, 2000 and February 15, 2001, attached as Annexes "X", "Y " and "Z

her Petition, indisputably show that she held her Director IV position in the EID only in an acting or temporary capacity.64 Petitioner is n

Career Executive Service (CES) officer, and neither does she hold Career Executive Service Eligibility, which are necessary qualifications

holding the position of Director IV as prescribed in the Qualifications Standards (Revised 1987) issued by the Civil Service Commission

Obviously, petitioner does not enjoy security of tenure as Director IV. In Secretary of Justice Serafin Cuevas vs. Atty. Josefina G. Bacal,66

Court held that:

"As respondent does not have the rank appropriate for the position of Chief Public Attorney, her appointment to that position canno

considered permanent, and she can claim no security of tenure in respect of that position. As held in Achacoso v. Macaraig:

‘It is settled that a permanent appointment can be issued only ‘to a person who meets all the requirements for the position t o which h

being appointed, including the appropriate eligibility prescribed.’ Achacoso did not. At best, therefore, his appointment could be regar

only as temporary. And being so, it could be withdrawn at will by the appointing authority and ‘at a moment’s notice’, confor mabl

established jurisprudence x x x.

The mere fact that a position belongs to the Career Service does not automatically confer security of tenure on its occupant even if he d

not possess the required qualifications. Such right will have to depend on the nature of his appointment, which in turn depends on

eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place



as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of appropriate eligibles. The appointm

extended to him cannot be regarded as permanent even if it may be so designated x x x.’"

Having been appointed merely in a temporary or acting capacity, and not possessed of the necessary qualifications to hold the position

Director IV, petitioner has no legal basis in claiming that her reassignment was contrary to the Civil Service Law. This time, the vigor

argument of petitioner that a temporary or acting appointment can be withdrawn or revoked at the pleasure of the appointing po

happens to apply squarely to her situation.

Still, petitioner assails her reassignment, carried out during the election period, as a prohibited act under Section 261 (h) of the Omn

Election Code, which provides as follows:

"Section 261. Prohibited Acts. The following shall be guilty of an election offense:

x x x

(h) Transfer of officers and employees in the civil service - Any public official who makes or causes any transfer or detail whatever of

officer or employee in the civil service including public school teachers, within the election period except upon prior approval of

Commission."

Petitioner claims that Benipayo failed to secure the approval of the COMELEC en banc to effect transfers or reassignments of COME

personnel during the election period.67 Moreover, petitioner insists that the COMELEC en banc must concur to every transfer

reassignment of COMELEC personnel during the election period.

Contrary to petiti oner’s allegation, the COMELEC did in fact issue COMELEC Resolution No. 3300 dated November 6, 2000,68 exempting COMELEC from Section 261 (h) of the Omnibus Election Code. The resolution states in part:

"WHEREAS, Sec. 56 and Sec. 261, paragraphs (g) and (h), of the Omnibus Election Code provides as follows:

x x x

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:

x x x

(h) Transfer of officers and employees in the civil service – Any public official who makes or causes any transfer or detail whatever of

officer or employee in the civil service including public school teachers, within the election period except upon approval of the Commission

WHEREAS, the aforequoted provisions are applicable to the national and local elections on May 14, 2001;

WHEREAS, there is an urgent need to appoint, transfer or reassign personnel of the Commission on Elections during the prohibited perio

order that it can carry out its constitutional duty to conduct free, orderly, honest, peaceful and credible elections;

"NOW, THEREFORE, the Commission on Elections by virtue of the powers conferred upon it by the Constitution, the Omnibus Election C

and other election laws, as an exception to the foregoing prohibitions, has RESOLVED, as it is hereby RESOLVED, to appoint, hire

employees or fill new positions and transfer or reassign its personnel, when necessary in the effective performance of its mandated functi

during the prohibited period, provided that the changes in the assignment of its field personnel within the thirty-day period before elect

day shall be effected after due notice and hearing." (Emphasis supplied)

The proviso in COMELEC Resolution No. 3300, requiring due notice and hearing before any transfer or reassignment can be made withirty days prior to election day, refers only to COMELEC field personnel and not to head office personnel like the petitioner. Under

Revised Administrative Code,69 the COMELEC Chairman is the sole officer specifically vested with the power to transfer or reass

COMELEC personnel. The COMELEC Chairman will logically exercise the authority to transfer or reassign COMELEC personnel pursuan

COMELEC Resolution No. 3300. The COMELEC en banc cannot arrogate unto itself this power because that will mean amending the Revi

Administrative Code, an act the COMELEC en banc cannot legally do.

COMELEC Resolution No. 3300 does not require that every transfer or reassignment of COMELEC personnel should carry the concurrenc

the COMELEC as a collegial body. Interpreting Resolution No. 3300 to require such concurrence will render the resolution meaningless s

the COMELEC en banc will have to approve every personnel transfer or reassignment, making the resolution utterly useless. Resolution

3300 should be interpreted for what it is, an approval to effect transfers and reassignments of personnel, without need of securing a seco

approval from the COMELEC en banc to actually implement such transfer or reassignment.













n an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC Mayor. It also fixed the at five thousand pesos (P5,000.00) as recommended by the Provincial Election Supervisor.However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside its September 30, 1order on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to Section 2, Article III of the 1Constitution. The court stated that it "will give due course to the information filed in this case if the same has the written approval of

Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter." (at p. 23, Rollo, emphsupplied)n another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file another information char

the same offense with the written approval of the Provincial Fiscal.Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court quashed the informatio

motion for reconsideration was denied.Hence, this petition.The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election Supervisor lacks jurisdictiodetermine the existence of probable cause in an election offense which it seeks to prosecute in court because:

While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorized legal officerthe Commission on Elections have the exclusive power to conduct preliminary investigation of all election offenses anprosecute the same, it is doubtful whether said authority under the auspices of the 1973 Constitution, still subsists unthe 1987 Constitution which has deleted in its Section 2, Article III, the phrase "and such other responsible officer as be authorized by law" in the equivalent section and article of the 1973 Constitution. (Rollo, p. 24)

The petition is impressed with merit.We emphasize important features of the constitutional mandate that " ... no search warrant or warrant of arrest shall issue except uprobable cause to be determined personally by the judge ... " (Article III, Section 2, Constitution)First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Elec

Supervisor to ascertain. Only the Judge and the Judge alone makes this determination .Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probcause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's certification of probable causneffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents behind

Prosecutor's certification which are material in assisting the Judge to make his determination.And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Ef the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives.

determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper-whether or not ths reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected

the expense, rigors and embarrassment of trial is the function of the Prosecutor.The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct prelimininvestigations. That authority, at one time reposed in them under Sections 13, 14 and 16 Rule 112 of the Rules of Cou1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47 Phil. 443, cited in Moran, Comments on the Ru1980 ed., Vol. 4, pp. 115-116) was removed from them by the 1985 Rules on Criminal Procedure, effective on Januar1985, (Promulgated on November 11, 1984) which deleted all provisions granting that power to said Judges. We occasion to point this out in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositinamely: (1) that the conduct of a preliminary investigation is "not a judicial function ... (but) part of the prosecution's ja function of the executive," (2) that wherever "there are enough fiscals or prosecutors to conduct prelimininvestigations, courts are counseled to leave this job which is essentially executive to them," and the fact "that a certpower is granted does not necessarily mean that it should be indiscriminately exercised."The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988, (The 1Amendments were published in the issue of Bulletin Today of October 29, 1988) did not restore that authority to Judof Regional Trial Courts; said amendments did not in fact deal at all with the officers or courts having authority to cond

preliminary investigations.This is not to say, however, that somewhere along the line RTC Judges also lost the power to make a prelimin

examination for the purpose of determining whether probable cause exists to justify the issuance of a warrant of arres

search warrant). Such a power — indeed, it is as much a duty as it is a power — has been and remains vested in ev judge by the provision in the Bill of Rights in the 1935, the 1973 and the present (1987) Constitutions securing the peagainst unreasonable searches and seizures, thereby placing it beyond the competence of mere Court rule or statuterevoke. The distinction must, therefore, be made clear while an RTC Judge may no longer conduct prelimininvestigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or information,retains the authority, when such a pleading is filed with his court, to determine whether there is probable cause justifthe issuance of a warrant of arrest. It might be added that this distinction accords, rather than conflicts, with the ratio

of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to judicial in nature.





The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted.WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22, 1988 and December 8, 1are REVERSED and SET ASIDE. The respondent trial court's Order dated September 30, 1988 is REINSTATED. The respondent couordered to proceed hearing the case with deliberate speed until its termination.SO ORDERED.

April 15, 1987

G.R. No. L-62075NATIVIDAD CORPUS, AURORA FONBUENA, JOSIE PERALTA, CRESENCIA PADUA, DOMINADOR BAUTISTA, LEOLA NEOG, EPIFA

CASTILLEJOS AND EDGAR CASTILLEJOS, petitioners,vs.TANODBAYAN OF THE PHILIPPINES, FISCAL JUAN L. VILLANUEVA, JR., AND ESTEBAN MANGASER, respondents.

Simplicio M. Sevilleja for respondent E. Mangaser. R E S O L U T I O N

Cortes, J.:

Petitioners Natividad Corpuz, Aurora Fonbuena, Josie Peralta, Cresencia Padua, Dominador Bautista and Leola Neog were members of Citizens Election Committee of Caba, La Union in the January 30, 1980 elections; petitioner Epifanio Castillejos was Director of the Burof Domestic Trade and petitioner Edgar Castillejos was then a candidate and later elected mayor in the same election. Private respondEsteban Mangaser, an independent candidate for vice. mayor of the same municipality sent a letter to President Ferdinand E. Marcharging the petitioners with violation of the 1978 Election Code, specifically for electioneering and/or campaigning inside the vo

centers during the election. On instruction from the Commission on Elections (COMELEC) the Regional Election Director of San FernandoUnion, conducted a formal investigation and on September 29, 1981 submitted its report recommending to the COMELEC the dismissathe complaint. On October 29, 1981, private respondent Mangaser formally withdrew his charges filed with the COMELEC statingntention to refile it with the Tanodbayan. On November 26, 1981 the COMELEC dismissed the complaint for insufficiency of evidence.

Subsequently the assistant provincial fiscal started a preliminary investigation of a complaint filed by Mangaser with the Tanodbaagainst the same parties and on the same charges previously dismissed by the COMELEC. The COMELEC Legal Assistance Office enteredappearance for the respondents (except Director Epifanio Castillejos and Edgar Castillejos) and moved for dismissal of the complaint. motion was denied. The TANODBAYAN asserting exclusive authority to prosecute the case, stated in a letter to the COMELEC Chairman a lawyer of the COMELEC if not properly deputized as a Tanodbayan prosecutor has no authority to conduct preliminary investigations prosecute offenses committed by COMELEC officials in relation to their office. (Rollo, p. 102) A motion for reconsideration was denHence, the present petition for certiorari and preliminary injunction. This Court after considering the pleadings filed and deliberating on

ssues raised considered the comment of the Solicitor General an Answer to the petition and considered the case submitted for decision

n the landmark case of the De Jesus v. People (No. L-61998, February 28, 1983, 120 SCRA 760) this Court dealt with the following quesof first impression relative to the rival claim of jurisdiction over election offenses committed by public officials:

Which of these entities have the power to investigate, prosecute and try election offenses committed by a public officer in relation tooffice - the Commission on Elections and the Court of First Instance (now the regional trial court) or the Tanodbayan and Sandiganbayan?

This Court rejected the assertion that no tribunal other than the Sandiganbayan has jurisdiction over offenses committed by public offiand employees in relation to their office, thus:

The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the conduct of election and

concomittant authority to investigate and prosecute election offenses is not without compelling reason. The evident constitutintendment in bestowing this power to the COMELEC is to insure the free, orderly and honest conduct of elections, failure of which wo

result in the frustration of the true will of the people and make a mere Idle ceremony of the sacred right and duty of every qualified citto vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public officials in relation to toffice would thus seriously impair its effectiveness in achieving this clear constitutional mandate.

From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceived neither explicit nor implicit grto it and its prosecuting arm, the Tanodbayan, of the authority to investigate, prosecute and hear election offenses committed by puofficers in relation to their office as contradistinguished from the clear and categorical bestowal of said authority and jurisdiction uponCOMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election Code of 1978.

An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear intention to place in the COME

exclusive jurisdiction to investigate and prosecute election offenses committed by any person, whether private individual or public off



or employee, and in the latter instance, irrespective of whether the offense is committed in relation to his official duties or not. In otwords, it is the nature of the offense and not the personality of the offender that matters. As long as the offense is an election offejurisdiction over the same rests exclusively with the COMELEC, in view of its all-embracing power over the conduct of elections.

WHEREFORE, inasmuch as the charge of electioneering filed against the petitioners had already been dismissed by the COMELECnsufficiency of evidence, the petition is hereby granted and the complaint filed by private respondent being investigated anew by

Tanodbayan charging the petitioners with the same election offense, DISMISSED.

SO ORDERED.

Teehankee, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

G.R. No. 112093 October 4, 1994

ANTONIO V.A. TAN, petitioner,vs.COMMISSION ON ELECTIONS, RUSTICO T. ILAGAN, Regional Election Director, Commission on Elections, Region XI, Davao City, SENFORIANO B. ALTERADO, respondents.

Leonido C. Delante for petitioner.

Eduardo C. de Vera for Atty. S.B. Alterado.

VITUG, J.:

On 10 May 1992, petitioner, as incumbent city Prosecutor of Davao City, was designated by the Commission on Elections ("COMELEC") aVice-Chairman of the City Board of Canvassers of Davao City for the 11th May 1992 synchronized national and local elections conformawith the provisions of Section 20(a) of Republic Act No. 6646 and Section 221(b) of the Omnibus Election Code (B.P. Blg. 881).

On the basis of the votes canvassed by the Board of Canvassers, Manuel Garcia was proclaimed the winning candidate for a congressioseat to represent the Second District of Davao City in the House of Representatives.

Private respondent Alterado, himself a candidate for the position, filed a number of cases questioning the validity of the proclamatio

Manuel Garcia and accusing the members of the City Board of Canvassers of "unlawful, erroneous, incomplete and irregular canvaMeanwhile, the electoral protest of private respondent Alterado was dismissed by the House of Representatives Electoral Tribu("HRET"). The criminal complaint for "Falsification of Public Documents and Violation of the Anti-Graft and Corrupt Practices Act" beforeOffice of the Ombudsman was likewise dismissed on the ground of lack of criminal intent on the part of therein respondents. Still pendinan administrative charge, the case now before us, instituted in the COMELEC against the City Board of Canvassers, including hepetitioner, for "Misconduct, Neglect of Duty, Gross Incompetence and Acts Inimical to the Service."

Petitioner moved to dismiss the administrative complaint against him for alleged lack of jurisdiction of the COMELEC thereover, he bunder the Executive Department of the government. The COMELEC denied petitioner's motion to dismiss.

Hence, the instant petition.

Petitioner contends that the COMELEC has committed grave abuse of discretion and acted without jurisdiction in continuing to take ac

on the administrative case. He argues that —

1) Petitioner is the City Prosecutor of Davao City. His office belongs to the executive branch of the government, more particularthe Department of Justice. As such, he is under the administrative jurisdiction of the said department and not of respondent COMELEC.

2) The Civil Service Law provides that department heads "shall have jurisdiction to investigate and decide matters involdisciplinary action against officers under their jurisdiction" (Section 47[b], P.D. 807).

3) Section 2, Article IX of the 1987 Constitution which authorizes respondent COMELEC to deputize public officers belonging toexecutive department is for the purpose of insuring free, orderly and honest elections. It does not include and comprehend administradisciplinary jurisdiction over officials belonging to the executive branch of government. That jurisdiction over deputized executive officannot be deemed to include such powers as would allow encroachment into the domain of the executive branch under guise

administering laws relative to elections.



4) Section 38 of P.D. 807 cited by respondents COMELEC and Ilagan as basis for their authority to investigate petitioner (Anneoffers no help to said respondents. The said provision merely lays down the procedure for administrative cases against non-presideappointees. Petitioner here, the city prosecutor for Davao City is a presidential appointee. 1

We find ourselves being unable to sustain the petition.

The COMELEC's authority under Section 2(6-8), Article IX, of the Constitution is virtually all-encompassing when it comes to elecmatters. In respect particularly to sanctions against election offenses, we quote:

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

xxx xxx xxx

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

xxx xxx xxx

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

Additionally, Section 52, Article VII, of the Omnibus Election Code, provides:

Sec. 52. Powers and functions of the Commission on Elections. — In addition to the powers and functions conferred upon it by Constitution, the Commission shall have exclusive charge of the enforcement and administration of all laws relative to the conducelections for the purpose of insuring free, orderly and honest elections, and shall:

a. Exercise direct and immediate supervision and control over national and local officials or employees, including members of national or local law enforcement agency and instrumentality of the government required by law to perform duties relative to the condof elections. In addition, it may authorize CMP Cadets eighteen years of age and above to act as its deputies for the purpose of enforcinorders.

The Commission may relieve any officer or employee referred to in the preceding paragraph from the performance of his duties relatin

electoral processes who violates the election law or fails to comply with its instructions, orders, decisions or rulings, and appointsubstitute. Upon recommendation of the Commission, the corresponding proper authority shall suspend or remove from office any or asuch officers or employees who may, after due process, be found guilty of such violation or failure.

t should be stressed that the administrative case against petitioner, taken cognizance of by, and still pending with, the COMELEC, irelation to the performance of his duties as an election canvasser and not as a city prosecutor. The COMELEC's mandate includeauthority to exercise direct and immediate supervision and control over national and local officials or employees, including members ofnational or local law enforcement agency and instrumentality of the government, required by law to perform duties relative to the condof elections. In order to help ensure that such duly deputized officials and employees of government carry out their respective assigtasks, the law has also provided than upon the COMELEC's recommendation, the corresponding proper authority (the Secretary of Department of Justice in the case at bar) shall take appropriate action, either to suspend or remove from office the officer or emplowho may, after due process, be found guilty of violation of election laws or failure to comply with instructions, orders, decision or ruling

the COMELEC.

Unavoidably, the COMELEC, prior to making its recommendation, must first satisfy itself that there indeed has been an infraction of the or of its directives issued conformably therewith, by the person administratively charged. It also stands to reason that it is the COMELbeing in the best position to assess how its deputized officials and employees perform or have performed in their duties, that shoconduct the administrative inquiry. To say that the COMELEC is without jurisdiction to look into charges of election offenses committedofficials and employees of government outside the regular employ of the COMELEC would be to unduly deny to it the proper and souexercise of such recommendatory power and, perhaps more than that, even a possible denial of due process to the official or emploconcerned.

Observe, nevertheless, that the COMELEC merely may issue a recommendation for disciplinary action but that it is the execudepartment to which the charged official or employee belongs which has the ultimate authority to impose the disciplinary penalty. The



then does not detract from, but is congruent with, the general administrative authority of the department of government concerned ots own personnel.

Petitioner's assertion that private respondent Alterado has resorted to forum-shopping is unacceptable. The investigation then beconducted by the Ombudsman on the criminal case for falsification and violation of the Anti-Graft and Corrupt Practices Act, on the hand, and the inquiry into the administrative charges by the COMELEC, on the other hand, are entirely independent proceedings. Neiwould the results in one conclude the other. Thus, an absolution from a criminal charge is not a bar to an administrative prosecution (Ofof the Court Administrator vs. Enriquez, 218SCRA 1), or vice versa. So, also, the dismissal by the COMELEC of SPC Case No. 92-232 on the ground that the case constituted an electoprotest within the jurisdiction of the HRET and not of the COMELEC (affirmed by this Court in G.R. No. 106452) does not necess

foreclosure the matter of possible liability, if warranted, of those who might have improperly acted in the canvass of votes.

There are other issues, mainly factual, that are raised and averred to show petitioner's innocence from the administrative chargPetitioner's allegations may well be true but this petition at bench may not preempt the determination of those factual matters yet topassed upon in the pending administrative proceedings.

WHEREFORE, the instant petition is DISMISSED. No costs.

SO ORDERED.

G.R. No. 108886 May 5, 1995

AQUILES U. REYES, petitioner,

vs.REGIONAL TRIAL COURT OF ORIENTAL MINDORO, BRANCH XXXIX, COMMISSION ON ELECTIONS, ADOLFO G. COMIA, AND TSANGGUNIANG BAYAN OF NAUJAN, ORIENTAL MINDORO, respondents.

MENDOZA, J.:

This is a petition for certiorari, prohibition and mandamus which seeks (1) the annulment of the decision, dated June 23, 1992, of Regional Trial Court (Br. 39) of Calapan, Oriental Mindoro, annuling the proclamation of petitioner as the eighth member of Sangguniang Bayan of Naujan, Oriental Mindoro; (2) the annulment of the decision of the Commission on Elections (COMELEC), daJanuary 22, 1993, dismissing petitioner's appeal from the trial court's decision; (3) the issuance of a writ of mandamus to com

respondent Sangguniang Bayan to recognize petitioner as the duly elected member thereof; and (4) the issuance of a writ of prohibitagainst respondent Adolfo G. Comia, enjoining him from continuing in office as member of the Sangguniang Bayan of Naujan, OrieMindoro.

The facts are as follows:

Petitioner Aquiles Reyes and private respondent Adolfo Comia were candidates for the position of member of the Sangguniang BayanNaujan, Oriental Mindoro in the May 11, 1992 synchronized elections.

On May 13, 1992, during the proceedings of the Municipal Board of Canvassers, private respondent moved for the exclusion of certelection returns, on the ground of serious irregularity in counting in favor of petitioner Aquiles Reyes votes cast for "Reyes" oconsidering that there was another candidate (Epitacio Reyes) bearing the same surname. However, without resolving his petition, Municipal Board of Canvassers proclaimed on the same day petitioner as the eighth winning candidate with 7,205 votes. On May 25, 1

petitioner took his oath of office.

On June 1, 1992, private respondent filed an election protest before the trial court. He alleged that "a vital mistake [had been] commiby the Board of Canvassers in the mathematical computation of the total number of votes garnered by petitioner [now privrespondent];" Private respondent alleged:

5. That in the said Statement of Votes by City/Municipality or Precinct or C.E. Form No. 20-A, it is reflected therein that the tnumber of votes garnered by the petitioner is only 858 votes, when in fact and in truth, after reviewing and correcting the computatiothe actual votes garnered by the petitioner the total votes to be counted in his favor is 915 votes;

6. That the Municipal Board of Canvassers and the Election Registrar of Naujan, Oriental Mindoro, after having been informed ofsaid discrepancies, manifested in the presence of Municipal Trial Court Judge TOMAS C. LEYNES, that it was an honest mistake committe

the computation and the addition of the total number of votes appearing in C.E. Form No. 20-A.;





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

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

d. §3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedisposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in divisprovided that motions for reconsideration of decisions shall be decided by the Commission en banc.

Conformably to these provisions of the Constitution all election cases, including pre-proclamation controversies, must be decided byCOMELEC in division. Should a party be dissatisfied with the decision, he may file a motion for reconsideration before the COMELECbanc. It is, therefore, the decision, order or ruling of the COMELEC en banc that, in accordance with Art. IX, A, §7, "may be brought to Supreme Court on certiorari." 4

Second Even on the merits we think the First Division of the COMELEC properly dismissed petitioner's appeal from the decision of the court because of his failure to pay the appeal fee within the time for perfecting an appeal. Rule 22, §9 of the COMELEC Rules of Procedexpressly provides:

Sec. 9. Grounds for dismissal of appeal. — The appeal may be dismissed upon motion of either party or at the instance of the Commison any of the following grounds:

(a) Failure of the appellant to pay the appeal fee; . . .

n accordance with §2(b) of COMELEC Resolution No. 2108-A, the appeal fee must be paid within the period to perfect the appeal. Thus:

Sec. 2. When docket and other fees shall be paid. —

xxx xxx xxx

(b) The appeal fees prescribed in section 3 of Rule 22 of the COMELEC Rules of Procedures shall be paid within the period to perthe appeal. . . .

The period to perfect the appeal is understood to be the period within which to file the notice of appeal.

On the other hand, Rule 22, §3 of the Rules of Procedure of the COMELEC provides:

Notice of Appeal. Within five (5) days after promulgation of the decision of the court, the aggrieved party may file with said court a noticappeal, and serve a copy thereof upon the attorney of record of the adverse party.

This resolution, which was promulgated on July 14, 1989, superseded COMELEC Resolution No. 1456 5 on which petitioner relies forcontention that the fee is to be paid only upon the filing of the appeal brief.

The records show that petitioner received a copy of the decision of the trial court on June 26, 1992. However, he paid the appeal feP1,020.00 only on August 6, 1992. In other words, petitioner allowed forty (40) days to lapse when the appeal fee should have been pwithin five (5) days after promulgation of the trial court's decision.

Petitioner claims that he acted on advice, presumably of COMELEC officials, to wait until the records of the appealed case was recefrom the Regional Trial Court, so that it could be docketed and given a case number before paying the appeal fee. But there is nothinthe record to show this or that petitioner offered to pay the appeal fee within the appeal period. He has not identified the person wallegedly gave him the erroneous advice.

Petitioner also prays that a re-canvass be conducted in all the electoral precincts of Naujan, Oriental Mindoro in view of the joint-affidexecuted by the members of the Municipal Board of Canvassers on October 12, 1993 in which they stated:

That the respondent Board, per verification from the Comelec records of Naujan, after receipt of the sworn letter-complaint of Mr. AquU. Reyes, aside from the matters already alluded to above found that the "40" votes he garnered in Precinct No. 37, and the "31" votePrecinct 41-A that should have been credited, transcribed or recorded in complainant's favor in the Statement of Votes (C.E. Form No. 2on the basis of the Election Returns (C.E. Form No. 9), thru honest mistake was erroneously and inadvertently transcribed or recorde

good faith and without malice due to mental and physical fatigue and exhaustion by the Board of Canvassers and its staff in favo



candidate Jeremias Nacorda of Sangguniang Bayan Member of the Municipality of Naujan in the Statement of Votes (C.E. Form No. 22-Asaid precincts, and what should have been credited and reflected as candidate Nacorda's vote in the Statement of Votes (C.E. Form NoA) on the basis of the Election Returns (C.E. Form No. 9) are "9" votes in Precinct 37 not "40" votes, and "8" votes in Precinct No. 41-A not "31" votes, certification is hereto attached issued by the Election Officer of Naujan that candidate Nacorda per Comelec records shn the Election Returns (C.E. Form No. 9) only garnered "9" votes in Precinct 37, and "8" votes in Precinct 41-A and marked as Annex "1"

made as integral part of his joint-affidavit.

This issue was raised in the Addendum to Appellant's Brief 6 in the COMELEC Case EAC No. 9-92. With the dismissal of that case by COMELEC's First Division, there is no basis for petitioner's present contention.

Third. Petitioner also assails the decision of the trial court as having been rendered without jurisdiction. He contends that the elecprotest of private respondent was filed more than ten days after his (petitioner's) proclamation.

Petitioner is, however, estopped to raise this question now. He did not only appeal from the decision of the trial court to the COMEraising this question, but he also filed a petition for mandamus and prohibition in the Court of Appeals. Having decided on this coursaction, he should not be allowed to file the present petition just because he lost in those cases.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

BUAC VS COMELEC

G.R. No. 161265 February 24, 2004

LABAN NG DEMOKRATIKONG PILIPINO, represented by its Chairman EDGARDO J. ANGARAvs.THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO

D E C I S I O N

TINGA, J.:

The Bible tells the story of how two women came to King Solomon to decide who among them is the baby’s true mother. King Solo mohis legendary wisdom, awarded the baby to the woman who gave up her claim after he threatened to split the baby into two.

t is fortunate that the two women did not ask the Commission on Elections (COMELEC) to decide the baby’s fate; otherwise, it would hcut the baby in half. For that is what the COMELEC exactly did in this case.

On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a registered political party, informed COMELEC by way of Manifestation that only the Party Chairman, Senator Edgardo J. Angara, or his authorized representative may endothe certificate of candidacy of the party’s official candidates. The same Manifestation stated that Sen. Angara had placed the LDP Secret

General, Representative Agapito A. Aquino, on "indefinite forced leave." In the meantime, Ambassador Enrique A. Zaldivar was designaActing Secretary General. The Manifestation concluded with this prayer:

A. The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are attached Certificates of Nominatexecuted by LDP Party Chairman Edgardo J. Angara or by such other officers of the LDP whom he may authorize in writing, and whwritten authorizations shall be deposited with the Honorable Commission by the LDP General Counsel.

B. The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels [sic] all Certificates of Candidacy not endorseLDP Party Chairman Angara or by such other LDP officials as may be authorized by him.

C. The Honorable Commission takes [sic] note of the designation of Ambassador Enrique "Ike" A. Zaldivar as Acting Secretary General ofLDP, and for the Honorable Commission to honor and recognize the official acts, to the exclusion of everyone, of Ambassador Zaldivarand in behalf of the LDP as Secretary General.1

On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman does not have the authority to impdisciplinary sanctions on the Secretary General. As the Manifestation filed by the LDP General Counsel has no basis, Rep. Aquino askedCOMELEC to disregard the same.



On December 17, 2003, the parties agreed to file a joint manifestation pending which the proceedings were deemed suspended.December 22, 2003, however, only the LDP General Counsel filed an Urgent Manifestation reiterating the contents of the December 8, 2Manifestation. The COMELEC also received a Letter from Rep. Aquino stating that the parties were unable to arrive at a joint manifestat

The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing newspaper accounts that Rep. Aquino had suspenSen. Angara as Party Chairman.

On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified petition. It turned out that, two days befoSen. Angara had submitted a verified Petition, in essence, reiterating the contents of its previous Manifestations. Attached to the Petitwas a Resolution2 adopted by the LDP National Executive Council, stating:

WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng Demokratikong Pilipino (LDP) convened unanimously passed a resolution granting full authority to Party Chairman Edgardo J. Angara to enter, negotiate and conclude a coaliagreement with other like-minded opposition parties, aggrupations and interest groups with the sole purpose of uniting the politopposition and fielding a unity ticket for the May 10, 2004 elections;

WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino (PMP) and the Partido Demokratiko ng PilipinLABAN (PDP-LABAN) forged a coalition to form the Koalisyon ng Nagkakaisang Pilipino (KNP);

WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled: "Resolution Choosing Mr. Fernando Poe, Jthe Standard Bearer of the Koalisyon ng Nagkakaisang Pilipino (KNP) for President of the Republic of the Philippines in the May 10, 2National Elections";

. . . .

WHEREAS, the process of unification of the political opposition and the actions taken in connection therewith by Chairman Angara andother governing bodies of the LDP required the taking of immediate and forceful action by them to preserve and protect the integcredibility, unity and solidarity of the LDP, and ensure the attainment of unification of the political opposition;

WHEREAS, such immediate and forceful action include those that have to do with pre-emptive efforts to diffuse the chaos, confusion disunity projected by the pronouncements and acts of some officers and members to the general membership of the LDP and electorate, such as the one taken by the Regional Committee for Region VI (Western Visayas) on December 6, 2003; the enforcemenorder in the LDP through the voice of a central leadership in command in an otherwise extraordinary and emergency situation, such asone taken by Party Chairman Angara on December 6, 2003; the filing of the Manifestation with the COMELEC on the matter of authorized signatories for the nominations and, the adoption of resolutions by the regional committees affirming their trust and confide

n Chairman Angara, and authorizing him to choose the presidential standard bearer for the May 10, 2004 elections; NOW THEREFORET

RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and confirm the Covenant of National Unity, Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce and implemthe same;

RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara and other governing bodies to preserve ntegrity, credibility, unity and solidarity of the LDP; and,

RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in, and support to, the continued effortsChairman Angara to unite the political opposition.3

Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the parties on oral arguments on the same dafter which the case was submitted for resolution.

Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for President was filed with the COMELEC. Certificate of Nomination was signed by Rep. Aquino as LDP Secretary General.

On January 6, 2004, the COMELEC came to a decision.

The Commission identified the sole issue as "who among the [LDP] officers [are] authorized to authenticate before the Commission thatperson filing the certificate of candidacy as party nominee for a certain position is the official candidate of the party chosen in accordawith its Constitution."4



The COMELEC recognized that it "has the authority to act on matters pertaining to ‘the ascertainment of the identity of *a+ p olitical pand its legitimate officers….’"5 In the same breath, however, it held that "internal party matters and wranglings [sic] are purely for the pmembers to settle among themselves and any unsettled controversy should be brought to the proper forum with jurisdiction." "question of who was suspended by whom" was thus left for such proper forum to resolve.6 Noting that "the intramurals in the LDP asnternal party matter seems to be irreconcilable for the present when the filing of Certificate of Candidacy and Certificate of Nomination

about to reach the deadline," the COMELEC disposed of the Petition in the following fashion:

WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and Oppositor. The candidatesPresident down to the last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are recognized byCommission as official candidates of LDP "Angara Wing". The candidates from President down to the last Sangguniang Bayan Kagawa

nominated and endorsed by LDP Secretary General Agapito "Butz" Aquino are recognized as official candidates of LDP "Aquino Wing".

Consequently, each faction or "Wing" is entitled to a representative to any election committee to which it may be entitled as created byCommission for the May 10, 2004 elections. For the copies of the election returns, the "Angara Wing" will be entitled to the copcorresponding to odd number of precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the "Aquino Wing" to the even number of precinthat is Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a registered Political Coalition becomerecognized and denominated as a Dormant [sic] Minority Party under the Election Laws. The two LDP "Wings" are further entitled to anaccorded the rights and privileges with corresponding legal obligations under Election Laws.7

Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr. concurred in the Resoluauthored by Commissioner Rufino S.B. Javier. Chair Benjamin S. Abalos, Sr., joined by Commissioner Mehol K. Sadain, submitted dissenopinions.

Sen. Angara thus filed the present petition for Certiorari8 assailing the COMELEC Resolution for having been issued with grave abusdiscretion.

Thereafter, Rep. Aquino filed his Comment.

The Office of the Solicitor General submitted a Manifestation and Motion praying for the granting of the Petition. The COMELE C thus filseparate Comment to the Petition.

The COMELEC correctly stated that "the ascertainment of the identity of [a] political party and its legitimate officers" is a matter that is within its authority. The source of this authority is no other than the fundamental law itself, which vests upon the COMELEC the power function to enforce and administer all laws and regulations relative to the conduct of an election.9 In the exercise of such power and indischarge of such function, the Commission is endowed with ample "wherewithal" and "considerable latitude in adopting means

methods that will ensure the accomplishment of the great objectives for which it was created to promote free, orderly and honelections."10

Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal Party, 11 this Court held:

… that the respondent *COMELEC+ has jurisdiction to hear and decide SP Case No. 85-021 [involving a petition to prohibit Eva Estrada Ka"from usurping or using the title or position of President of the Liberal Party"] in view of its powers under Article IX-C, Section 2, of Constitution to, among others, enforce and administer all laws relative to the conduct of elections, decide all questions affecting electiregister and regulate political parties, and insure orderly elections. These powers include the determination of the conflicting claims mn SP Case No. 85-021, which are likely to cause confusion among the electorate if not resolved. Additionally, the COMELEC is mandated

the Election Code to inter alia require candidates to specify their political party affiliation in their certificates of candidacy, allow politparties to appoint watchers, limit the expenditures of each political party, determine whether or not a political party shall retainregistration on the basis of its showing in the preceding elections, etc. These matters include the ascertainment of the identity of

political party and its legitimate officers responsible for its acts and the resolution of such controversies as the one now before it where party appears to be divided into two wings under separate leaders each claiming to be the president of the entire party…. *Em phsupplied.]

Likewise in Palmares v. Commission on Elections,12 to which the assailed Resolution made reference and which involved the NacionaParty,13 this Court ruled

… that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the Constitution, the COMELEC is empowereregister political parties [Sec. 2(5), Article IX-C.] Necessarily, the power to act on behalf of a party and the responsibility for the acts of spolitical party must be fixed in certain persons acting as its officers. In the exercise of the power to register political parties, the COMEmust determine who these officers are. Consequently, if there is any controversy as to leadership, the COMELEC may, in a proper cbrought before it, resolve the issue incidental to its power to register political parties.



This Court then proceeded to quote from Kalaw, supra.

The two cited decisions find support in Sumulong v. Commission on Elections14 and Sotto v. Commission on Elections,15 where this Con resolving the issue as to who between the factions of a political party was entitled to nominate election inspectors, necessarily sett

claims to the party’s leadership. Both cases were decided without question on the COMELEC’s power to determine such claims

conformity with jurisprudence, this Court did not identify the COMELEC’s jurisd iction as an issue when this case was heard on argument.

There is no inconsistency between the above cases on the one hand and this Court’s more recent ruling in Sinaca v. Mula16 on the othethe latter case, this Court held:

A political party has the right to identify the people who constitute the association and to select a standard bearer who best representsparty’s ideologies and preference. Political parties are generally free to conduct their internal affairs free from judicial supervision; common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interesallowing the political processes to operate without undue interference. Thus, the rule is that the determination of disputes as to panominations rests with the party, in the absence of statutes giving the court’s *sic+ jurisdiction.

Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to determfactional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party itself othe electors at the polls. Similarly, in the absence of specific constitutional or legislative regulations defining how nominations are tomade, or prohibiting nominations from being made in certain ways, political parties may handle such affairs, including nominations, in smanner as party rules may establish. [Emphasis supplied.]

Sinaca, unlike previous cases, did not involve the question of party identity or leadership; hence, it was not necessary for the COMELEdelve therein. None of the candidates involved in that case were claiming to be the political party’s sole candidate.

n the case at bar, the Party Chairman, purporting to represent the LDP, contends that under the Party Constitution only he or representative, to the exclusion of the Secretary General, has the authority to endorse and sign party nominations. The Secretary Genvigorously disputes this claim and maintains his own authority. Clearly, the question of party identity or leadership has to be resolved ifCOMELEC is to ascertain whether the candidates are legitimate party standard bearers or not.

The repercussions of the question of party identity and leadership do not end at the validity of the endorsement of the certificatecandidacy of persons claiming to be the party’s standard bearer. The law grants a registered political party certain rights a nd privilegewhich, naturally, redound to the benefit of its candidates. It is also for this significant dimension that Sinaca is not appl icable in this caseconceded in Sinaca itself, the Court will have to assume jurisdiction to determine factional controversies within a political party whe

controlling statute or clear legal right is involved.18 Verily, there is more than one law, as well as a number of clear legal rights, that arstake in the case at bar.

The law accords special treatment to political parties. The dominant majority party, the dominant minority party as determined by COMELEC, for instance, is entitled to a copy of the election returns.19 The six (6) accredited major political parties may nominate principal watchers to be designated by the Commission.20 The two principal watchers representing the ruling coalition and the dominopposition coalition in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that precinct.21 Th(3) of the six accredited major political parties are entitled to receive copies of the certificate of canvass.22 Registered political parwhose candidates obtained at least ten percent (10%) of the total votes cast in the next preceding senatorial election shall each havwatcher and/or representative in the procurement and watermarking of papers to be used in the printing of election returns and offballots and in the printing, numbering, storage, and distribution thereof.23 Finally, a candidate and his political party are authorizedspend more per voter than a candidate without a political party.24

t is, therefore, in the interest of every political party not to allow persons it had not chosen to hold themselves out as representativethe party. Corollary to the right of a political party "to identify the people who constitute the association and to select a standard bewho best represents the party’s ideologies and preference"25 is the right to exclude persons in its association and to not lend its name prestige to those which it deems undeserving to represent its ideals. A certificate of candidacy makes known to the COMELEC that person therein mentioned has been nominated by a duly authorized political group empowered to act and that it reflects accurately sentiment of the nominating body.26 A candidate’s political party affiliation is also printed followed by his or her name in the certifiedof candidates.27 A candidate misrepresenting himself or herself to be a part y’s candidate, therefore, not only misappropriates the par

name and prestige but foists a deception upon the electorate, who may unwittingly cast its ballot for him or her on the mistaken belief he or she stands for the party’s principles. To prevent this occurrence, the COMELEC has the power and the duty to step in and enforceaw not only to protect the party but, more importantly, the electorate, in line with the Commission’s broad constitutional mandat

ensure orderly elections.



Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party identity and leadership as an incident toenforcement powers, this Court cannot help but be baffled by the COMELEC’s ruling declining to inquire into which party offic er hasauthority to sign and endorse certificates of candidacy of the party’s nominees.

The only issue in this case, as defined by the COMELEC itself, is who as between the Party Chairman and the Secretary General has authority to sign certificates of candidacy of the official candidates of the party. Indeed, the petitioners’ Manifestation and Petition bef

the COMELEC merely asked the Commission to recognize only those certificates of candidacy signed by petitioner Sen. Angara orauthorized representative, and no other.

To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go so far as to resolve the root of

conflict between the party officials. It need only resolve such questions as may be necessary in the exercise of its enforcement powers.

The LDP has a set of national officers composed of, among others, the Party Chairman and the Secretary General.28 The Party Chairmathe Chief Executive Officer of the Party, whose powers and functions include:

(1) To represent the Party in all external affairs and concerns, sign documents for and on its behalf, and call the meetings and bepresiding officer of the National Congress and the National Executive Council….29

The Secretary General, on the other hand, assists the Party Chairman in overseeing the day-to-day operations of the Party. Amongpowers and functions is:

(1) When empowered by the Party Chairman, to sign documents for and on behalf of the Party…. 30

The Secretary General’s authority to sign documents, therefore, is only a delegated power, which originally pertains to the Party Chairm

Rep. Aquino claims that he was authorized to exercise to sign the party candidates’ certificates of candidacy in the previous electindeed, the COMELEC found that:

n fact, during the May 14, 2001 elections, oppositor Agapito "Butz’ Aquino, as LDP Secretary General, was authorized by the LDP to signthe Certificates of Nomination of the LDP Senatorial Candidates, including the Certificate of Nomination for Senatorial Candidate EdgardAngara, a copy of said Certificate of Nomination and a copy of the Certificate for Senator Edgardo J. Angara are attached as Annexes A B, respectively. This action by Secretary General Aquino is in accordance with the Constitution and By-laws of LDP, not questioned by LDP signed by its Secretary General. This revocation has not been revoked or recalled by the National Congress of the LDP which is the oauthorized to nominate candidates for President and Vice-President, respectively.31

Assuming that Rep. Aquino previously had such authority, this Court cannot share the COMELEC’s finding that the same "has not brevoked or recalled." No revocation of such authority can be more explicit than the totality of Sen. Angara’s Manifestations and Peti

before the COMELEC, through which he informed the Commission that Rep. Aquino’s had been placed on indefinite forced leave an d Ambassador Zaldivar has been designated Acting Secretary General, who "shall henceforth exercise all the powers and functions of Secretary General under the Constitution and By-Laws of the LDP."32 As the prerogative to empower Rep. Aquino to sign documedevolves upon Sen. Angara, so he may choose, at his discretion, to withhold or revoke such power.

Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No. 645333 as basis for the Party SecreGeneral’s authority to sign certificates of candidacy. Said Section 6 states:

SEC. 6. Certificate of nomination of official candidates by political party. – The certificate of nomination of registered political partiecoalitions of political parties of their official candidates shall be filed not later than the last day for filing of certificates of candidacy, whiJanuary 2, 2004 duly signed and attested under oath by the party president, chairman, secretary-general or any other duly author

officer and shall bear the acceptance of the nominee by affixing his signature in the space provided therein. [Emphasis and underscosupplied.]

Clearly, however, the above provision presupposes that the party president, chairman or secretary-general has been "duly authorized"the party to sign the certificate of candidacy. COMELEC Resolution No. 6453 cannot grant a party official greater authority than whatparty itself grants, lest such Resolution amount to a violation of the party’s freedom of association.

Neither does the Party Secretary General have the power to nominate the official candidates of the LDP. That power resides in governing bodies of the Party.34 In particular, the National Congress, which is the highest policy-making and governing body of the Pahas the power







CARPIO MORALES,COMMISSION ON ELECTIONS AZCUNA,and JULIE R. MONTON, TINGA,

Respondents. CHICO-NAZARIO,GARCIA,VELASCO, JR., andNACHURA, JJ.

Promulgated:

May 8, 2007

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

DECISION

AZCUNA, J.:

This is a petition for certiorari and prohibition with prayer for the issuance of a temporary restraining order (TRO), or status quo aorder, and/or writ of preliminary injunction.

Petitioner Ibarra R. Manzala seeks to annul the resolution, dated August 24, 2006, of the Former Second Division[1] of Commission on Elections (COMELEC), declaring private respondent Julie R. Monton to be the duly elected Municipal Mayor of MagdiwaRomblon in the May 10, 2004 National and Local Elections, and the resolution of the COMELEC en banc,[2] dated January 24, 2007, denypetitioner’s motion for reconsideration and affirming the Resolution of August 24, 2006 with modification as to the number of vobtained by both parties after re-appreciation.

The antecedents are as follows:

Petitioner Ibarra R. Manzala and private respondent Julie R. Monton were mayoralty candidates in the Municipality of MagdiwaRomblon, during the May 10, 2004 National and Local Elections. On May 13, 2004, the Municipal Board of Canvassers proclaimed prirespondent as the duly elected Municipal Mayor with 2,579 votes, or a margin of 13 votes, over petitioner’s 2,566 votes.

On May 19, 2004, petitioner filed an election protest with the Regional Trial Court of Romblon, Branch 81 (Election Protest Case7), seeking recount in the 10 precincts of Magdiwang on the grounds of fraud, serious irregularities, and willful violation of the OmnElection Code (Batas Pambansa Bilang 881) and other pertinent COMELEC rules allegedly committed by the voters and the Chairman members of the Board of Election Inspectors during the election.

Private respondent filed an Answer with Counter-Protest and Counterclaim, averring that the election was held peacefully withrregularity whatsoever. By way of counter-protest, private respondent contested the election in certain precincts, to wit: Precincts 4

40A, 39A, 38A, 37A, 36A and 35A of Barangay Tampayan; Precincts 1A, 2A, 3A, 4A, 5A, 6A, 7A, 8A, 9A and 9B of Barangay PoblacPrecinct 16A of Barangay Agutay; Precinct 24A of Barangay Dulangan; and Precinct 32A of Barangay Jao-asan.

Thereafter, petitioner filed a Reply and Answer to the Counter-Protest and Counterclaim.

A revision of ballots was later conducted. In its decision of December 8, 2005, the trial court rendered judgment in favor of petitio

thus:

WHEREFORE, premises considered, protestant IBARRA R. MANZALA is hereby proclaimed as the duly-elected Municipal MayoMagdiwang, Romblon during the election of May 10, 2004 who won over protestee JULIE R. MONTON with a majority of 137 valid vand is entitled to occupy said position. The proclamation by the MUNICIPAL BOARD OF CANVASSERS of Magdiwang, Romblon that JULMONTON was the duly-elected MAYOR is hereby ANNULLED.

SO ORDERED.[3]

Petitioner moved for the execution of the decision pending appeal which the trial court granted on December 16, 2005.





whole case is thrown open for review and the appellate court can resolve issues which are not even set forth in the pleadings. Inpresent case, the COMELEC en banc had thoroughly reviewed the decision of its Former Second Division and affirmed the findings thewith modification as to the number of votes obtained by both parties after re-appreciation, that is, private respondent obtained 2,votes, or a margin of 60 votes, over petitioner’s 2,475 votes.

Petitioner further contends that the trial court’s “judicial appreciation of the contested ballots *should be+ honored, respected, and gthe importance it deserves by *this+ Court.”

This contention has no merit. Section 2, Rule 64 of the Rules of Court states that from a judgment or final order or resolution ofCOMELEC, the aggrieved party, herein petitioner, may file a petition for certiorari under Rule 65. Thus, in a special civil action of certio

under Section 1 of Rule 65, the only question that may be raised and/or resolved is whether or not the COMELEC had acted with grabuse of discretion amounting to lack or excess of jurisdiction.[5] Such fact does not exist in the present case.

Moreover, the appreciation of the contested ballots and election documents involves a question of fact best left to the determinatiothe COMELEC, a specialized agency tasked with the supervision of elections all over the country. To reiterate, the COMELEC is constitutional commission vested with the exclusive original jurisdiction over election contests involving regional, provincial and officials, as well as appellate jurisdiction over election protests involving elective municipal and barangay officials. Consequently, inabsence of grave abuse of discretion or any jurisdictional infirmity or error of law, the factual findings, conclusions, rulings and decisrendered by the said Commission on matters falling within its competence shall not be interfered with by this Court.[6]

Finally, to justify the issuance of an injunctive relief, petitioner claims that there had been a “misinterpretation and misa pplication ofaw” by the COMELEC and that “should the facts and circumstances presented in this petition be sufficiently persuasive, … a wri

preliminary injunction or a temporary restraining order be issued to prevent the public respondent COMELEC from disrupting the stab

of governance in the Municipality of Magdiwang, Province of Romblon, in the meantime that the petition is being reviewed.”

As a consequence of the dismissal of the instant petition, petitioner’s prayer for any form of injunctive relief, perforce, h as no factual egal basis.

WHEREFORE, the petition is DISMISSED for lack of showing that the Commission on Elections committed any grave abuse of discren issuing the assailed Resolution, dated August 24, 2006, by the Former Second Division and the Resolution, dated January 24, 2007, by

Commission en banc, which declared private respondent Julie R. Monton to be the duly elected Municipal Mayor of Magdiwang, Rombn the May 10, 2004 National and Local Elections.

Accordingly, the Commission on Elections en banc is DIRECTED to forthwith cause the full implementation of the Writ of Executiossued on February 28, 2007 and the Order of March 1, 2007.

In view of the proximity of the next National and Local Elections on May 14, 2007, this Decision is IMMEDIATELY EXECUTORY.

No costs.

SO ORDERED.

[G.R. No. 105278. November 18, 1993.]

FRANCIS PANCRATIUS N. PANGILINAN, Petitioner, v. COMMISSION ON ELECTIONS, BOARD OF CANVASSERS OF QUEZON CITY, 4LEGISLATIVE DISTRICT, AND FELICIANO BELMONTE, JR., Respondents.

Robles, Ricafrente & Aguirre Law Firm for Petitioner.

Brillantes, Nachura, Navarro & Arcilla for Private Respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; WITH NO JURISDICTION OVER CONTESTS RELATING TO THE ELECTIRETURNS, AND QUALIFICATIONS OF MEMBERS OF THE HOUSE OF REPRESENTATIVES. — Sec. 3, Article IX-C of the 1987 Constitution shobe read in relation to Sec. 2, Article IX-C of the same Constitution which provides, among others, as follows: "Sec. 2 The CommissionElections shall exercise the following powers and functions: . . . (2) Exercise exclusive original jurisdiction over all contests relating to elections, returns, and qualifications of all elective regional, provincial, and city officials, and appellate jurisdiction over all conte

nvolving elective municipal officials decided by trial courts of general jurisdiction, or involving elective barangay officials decided by



courts of limited jurisdiction.." . . It will be noted that the aforequoted provision of the Constitution vests in the COMELEC "excluoriginal jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional, provincial and city officit has no jurisdiction over contests relating to the election, returns, and qualifications of Members of the House of Representatives. On

other hand, under Sec. 17, Article VI of the 1987 Constitution, the Electoral Tribunal of the House of the Representatives is the "sole juof all contests relating to the election, returns, and qualifications" of its members. Consequently, the phrase "including pre-proclamacontroversies" used in Sec. 3, Article IX-C of the Constitution should be construed as referring only to "pre-proclamation controversieselection cases that fall within the exclusive original jurisdiction of the COMELEC, i.e., election cases pertaining to the election of regioprovincial and city officials.

2. ID.; OMNIBUS ELECTION CASE; DOCTRINE ENUNCIATED IN OLFATO CASE (103 SCRA 741), ABANDONED WITH THE EFFECTIVITY

THE 1987 CONSTITUTION. — The petitioner’s reliance on the case of Olfato, Et. Al. v. COMELEC, E t. Al. wherein this Court held thatword "all" in Section 242 of the Omnibus Election Code covers all pre-proclamation controversies involving elections of Batasan, provinccity and municipal officials, is misplaced. The Olfato case was decided under the regime of the 1973 Constitution. Under the sConstitution, the Commission on Elections was "the sole judge of all contests relating to the elections, returns, and qualifications ofMembers of the Batasang Pambansa and elective provincial and city officials." Since the COMELEC had jurisdiction over election contpertaining to the election of Members of the Batasang Pambansa, it had, likewise, as held in the Olfato case, the power and authorithear and decide pre-proclamation controversies involving the election of Members of the Batasang Pambansa.

3. ID.; LEGISLATIVE DEPARTMENT; SENATE AND HOUSE OF REPRESENTATIVE NOW HAVE THEIR RESPECTIVE ELECTORAL TRIBUNTRIBUNALS ARE THE SOLE JUDGE OF ALL CONTESTS RELATING TO THE ELECTION, RETURNS AND QUALIFICATIONS OF THEIR RESPECTMEMBERS. — Since the 1973 Constitution has been replaced by the 1987 Constitution, the Batasang Pambansa stands abolished andegislative power is now vested in the Congress of the Philippines consisting of the Senate and the House of Representatives. The Sen

and the House of Representatives now have their respective electoral Tribunals which are the "sole judge of all contests relating to

election, returns, and qualifications of their respective Members," thereby divesting the Commission on Elections of its jurisdiction unthe 1973 Constitution over election cases pertaining to the election of the Members of the Batasang Pambansa (Congress). It follows the COMELEC is now bereft of jurisdiction to hear and decide pre-proclamation controversies against members of the HouseRepresentatives as well as of the Senate.

4. ID.; ELECTION LAWS; PRE-PROCLAMATION CONTROVERSIES; MOOT AND ACADEMIC AFTER PROCLAMATION AND ASSUMPTIONOFFICE. — The private respondent Feliciano Belmonte, Jr. has already been proclaimed as the winner in the congressional elections infourth district of Quezon City. He has taken his oath of office and assumed his duties as representative; hence, the remedy open to petitioner was to have filed an electoral protest with the Electoral Tribunal of the House of Representatives.

D E C I S I O N

PADILLA, J.:

This is a petition for certiorari, prohibition and mandamus with a prayer for the issuance of a temporary restraining order to: (1) compeCommission on Elections (COMELEC) to hear and decide the petition for disqualification of private respondent in SPA No. 92-127;declare unconstitutional Section 15 of R.A. No. 7166 disallowing pre-proclamation controversies in the election of members of the HousRepresentatives; (3) compel the Board of Canvassers in the fourth legislative district of Quezon City to give due course to p etition

objections to 120 election returns; and (3) prohibit and enjoin said Board of Canvassers from making further canvass of the returns ansuspend the proclamation of the winning candidate or to nullify the canvass and set aside said proclamation.chanrobles virtualawlibchanrobles.com:chanrobles.com.ph

The antecedents are as follows:chanrob1es virtual 1aw library

The petitioner Francis Pancratius N. Pangilinan and private respondent Feliciano Belmonte, Jr. were both candidates for congressman infourth legislative district of Quezon City in the 11 May 1992 elections.

On 23 April 1992, Elmer Candano and Jose Umali, Jr. as registered voters of the fourth legislative district of Quezon City, filed with COMELEC a petition for disqualification 1 against the private respondent for violation of Section 68 of the Omnibus Election Code of Philippines (B.P. Blg. 881), docketed therein as SPA Case No. 92-127, alleging inter alia that: (a) during a rally held on 1 April 1992 at AgStreet, Barangay Tatalon, Quezon City, private respondent boasted and acknowledged that he gave one (1) sack of rice, P5,000.00 medicines to the community and had made available to them the services of a lawyer; (b) similarly, in Barangay San Vicente, during coronation night on 4 April 1992 of the winner of the Miss San Vicente pageant, private respondent gave tickets for two to Hongkong towinner, Miss Ana Marie Debil. 2chanrobles virtual lawlibrary









n sum, petitioners insist they are innocent of any wrongdoing in their act of registering twice on different days in two different precinPetitioners argue that they did not intend to perpetrate the act prohibited, and therefore they should be exculpated. They claim honmistake and good faith in registering twice. Petitioners claim they made the first registration because of the intervention and instigatiognacio.

Petitioners theorize that their August 21, 1997 letter to the election registrar of Cavite City informing him of the lapse and asking howrectify the same constitutes substantial compliance with the Omnibus Election Code’s requirement of cancellation of prior reg istratThey further implore a liberal construction of the laws on election offenses since almost five years had lapsed from the date of commission of the offense on June 15, 1997. They claim the case is about to prescribe under the Election Code.

Lastly, petitioners fault the COMELEC en banc for assuming original jurisdiction over the case in contravention of Section 3, Article IX-the Constitution. Petitioners argue that this constitutional provision requires that election cases must first be heard and decided bDivision before assumption of jurisdiction by the COMELEC en banc.


The petition is bereft of merit.

First and Second Issues: Whether the criminal cases should be dismissed on the ground of lack of intent and substantial compliance wthe requirement of cancellation of previous registration.

n Minute Resolution No. 00-2281 dated November 9, 2000, the COMELEC en banc affirmed the recommendation of the investigaofficer. The COMELEC thus directed its Law Department to file the necessary information against petitioners for violation of Article X

SEC. 261 (y) (5) of the Election Code which reads:

"SEC. 261. Prohibited Acts. – The following shall be guilty of an election offense:

(y) On Registration of Voters:

(5) Any person who, being a registered voter, registers anew without filing an application for cancellation of his previous registration."

Petitioners filed a motion for reconsideration to which the COMELEC en banc issued the assailed Resolution dated June 3, 2002 affirmthe Minute Resolution.

The grant by the Constitution to the COMELEC of the power to investigate and prosecute election offenses is intended to enable

COMELEC to assure the people of "free, orderly, honest, peaceful and credible elections." This grant is an adjunct to t he COMELconstitutional duty to enforce and administer all election laws. Failure by the COMELEC to exercise this power could result in the frustraof the true will of the people and make an idle ceremony of the sacred right and duty of every qualified citizen to vote.4

Petitioners lose sight of the fact that the assailed resolutions were issued in the preliminary investigation stage. A preliminary investigats essentially inquisitorial and is only the means to discover who may be charged with a crime, its function being merely to determ

probable cause.5 All that is required in the preliminary investigation is the determination of probable cause to justify the holdinpetitioners for trial. By definition, probable cause is –

"x x x a reasonable ground of presumption that a matter is, or may be, well founded x x x such a state of facts in the mind of the prosecas would lead a person of ordinary caution and prudence to believe or entertain an honest or strong suspicion that a thing is so. The tdoes not mean àctual or positive cause’ nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thufinding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that

believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidencthe prosecution in support of the charge."6

There is no question that petitioners registered twice on different days and in different precincts without canceling their prevregistration. Aside from this, the COMELEC found certain circumstances prevailing in the case sufficient to warrant the finding of probacause. The COMELEC noted that petitioners wrote down their address in Precinct No. 83-A of Barangay 18 as No. 709 T. Gomez ExtensSt., Barangay 18-Maya, Cavite City. However, in Precinct No. 129-A of Barangay 28, petitioners registered as residents of No. 709 MagcaSt., Barangay 28-Taurus, Caridad, Cavite City. The COMELEC noted further that the affidavits submitted by petitioners contained glanconsistencies. Petitioners claimed that Ignacio led them to the wrong precinct to register. However, Ignacio’s a ffidavit stated that w

he led them to the voting precinct of Barangay 18, he immediately left the area not knowing that petitioners registered in the wrbarangay. Contrary to petitioners’ sworn statements, Aurora Baytan, mother of petitioners, had another version. She claimed in affidavit that on June 15, 1997, Ignacio went to their house to inform them about the redefinition of their barangay’s territorial jurisdict

Right then and there, Ignacio brought her sons to Barangay 18 to register.







Minute Resolution No. 00-2281 was issued during the en banc meeting held on November 9, 2000 to resolve the recommendationRavanzo in the case.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

[G.R. Nos. 153991-92. October 16, 2003]

ANWAR BERUA BALINDONG, petitioner, vs. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF THE MUNICIPALITYMALABANG and AKLIMA JAAFAR BALINDONG, respondents.D E C I S I O NTINGA, J.:

Before us is a petition where the petitioner, Anwar Balindong (“Anwar”), a candidate for Mayor of Malabang, Lanao del Sur, se eks toaside the Resolution[1] dated July 4, 2002 of the Commission on Elections (COMELEC) en banc[2] ordering the Municipal BoardCanvassers (MBC) to immediately reconvene, totally exclude from canvass the election return for a certain precinct and count eighty-e(88) votes in the election return for another precinct, not in favor of Anwar but another mayoralty candidate by the name of Amir-OdBalindong.

Petitioner, private respondent Aklima Jaafar Balindong (“Aklima”), and Amir -Oden Balindong are half brothers.[3] They were three (3the nine (9) candidates for the position of Mayor of the Municipality of Malabang in the May 14, 2001 elections.[4]

On May 17, 2001, the MBC convened “with all parties represented by their lawyers and/or authorized representative,” so it sta tedBefore the start of the canvassing, the lawyers of the candidates and political parties who were present agreed that all election returnshould be opened and appreciated immediately so that they could determine the genuineness and authenticity thereof. They stressed they had to complete the canvass at the soonest possible time because they had to attend the canvassing in the other municipalitieLanao del Sur, there being a shortage of lawyers in the province.[7]

During the canvassing on the same day, Aklima, through his representative, Bassit Balindong (“Bassit”), filed an objection[8] to the incluof the election return for Precinct 127A/128A due to “fraud and irregularity in the conduct of election, being voted upon by those whonot registered thereof (sic)” and “violence, threat and intimidation against watchers of our (their) party and the registered voters there

Bassit also objected to the inclusion of the election return for Precinct 18A “for being voted upon by non-registered person (sic)” and “

existent Barangay, all the registered voters are non-existent.”*9+ Also on the same day, Aklima filed a Petition*10+ to disqualify

chairman of the MBC, Parok P. Asira, for alleged bias and partiality, but the same was denied for lack of merit in the Order/Ruling of MBC of even date. [11]

When the MBC reconvened on May 18, 2001, Atty. Badelles Macaan, acting as counsel for Aklima, filed an objection to the inclusion[12all the election returns, invoking as grounds the “illegal proceedings of the Board of Canvassers” and violation of Section 2 5(l) of COMEResolution No. 3848.[13] The MBC denied the objection, noting that Aklima as petitioner therein was estopped from questioning proceedings of the MBC since he expressly agreed to and voluntarily participated in the proceedings and that he did not assail genuineness and accuracy of the election returns and the votes reflected therein.[14]

On the same day, Aklima filed before the MBC his Offer and Admission of Evidence,[15] attaching thereto the minutes of the Mproceedings on May 17, 2001 to prove the illegality thereof, and a Notice of Appeal.[16] Nevertheless, the MBC proceeded withcanvassing of returns. Apparently, this prompted Aklima to file before the COMELEC on May 21, 2001 an Appeal,[17] urging that proceedings of the MBC be declared illegal and a new board of canvassers constituted to canvass the election returns for the “vario

precincts of Malabang. This was docketed as SPC No. 01-063.

On May 24, 2001, the MBC proclaimed the winning municipal candidates,[18] with Anwar winning as Mayor by a margin of fifty-two votes over Aklima. [19]

Aklima filed another Petition[20] on May 28, 2001, praying that the MBC be ordered to reconvene and re-canvass, this time, the elecreturns in 38 precincts only, without stating, however, their specific precinct numbers; the proceedings of the MBC declared illegal; municipal canvass transferred to a “safer venue”; and, the proclamation of any municipal candidate suspended or annulled. The petiwas docketed as SPC No. 01-175.

n a bid to amend his petition in SPC No. 01-175, Aklima filed the corresponding motion for leave.[21] In his Amended Petition,[22] Akfurther whittled down the number of contested election returns, this time seeking the annulment of the election results in five (5) preci

only, namely: Precincts 18A, 80A, 127A/128A, 133A/134A and 47A/48A. According to him, the election returns in the five (5) preci



were “products of fraud, forgery, terrorism and other forms of irregularities.” He likewise sought the annulment of the proclamatioAnwar.

At the hearing on June 29, 2001, the COMELEC ordered the consolidation of SPC No. 01-063 and 01-175.

Stressing that the petitions questioned the regularity of the canvassing and the genuineness of the election returns for Precincts 80A 47A/48A, the COMELEC per the Order[23] of October 15, 2001 concluded that the petitions presented pre-proclamation controversAccordingly, the poll body ordered that the cases be heard and directed the appearance of the chairmen of the boards of electnspectors (BEIs) of the two precincts and the presentation of the ballot box containing the copies of the election returns used by the M

The COMELEC also ordered Aklima to amend his petition in SPC No. 01-175 to include the other proclaimed election winners

respondents.

At the scheduled hearing on December 13, 2001 before the COMELEC, Anwar argued that since Aklima failed to object to the inclusiothe returns for Precincts 80A and 47A/48A at the MBC, much less appeal the MBC ruling to the COMELEC, which failure was fatal accordto him, the COMELEC could no longer exclude the returns.[24] After the oral arguments, the COMELEC examined the canvassing copiethe election returns for Precincts 80A and 47A/48A which were used by the MBC.[25] Thereafter, it declared the cases submittedresolution. [26]

Nonetheless, Anwar filed an Opposition and Memorandum[27] where he posited that the COMELEC en banc had no jurisdiction overpetitions which both involved pre-proclamation controversies in view of the provision[28] of the Constitution on the matter. He reiterated his position that the inclusion for canvass of the returns for Precincts 80A and 47A/48A could no longer be assailed.

On July 4, 2002, the COMELEC promulgated the challenged Resolution,[29] totally excluding the election return for Precinct 80A with Se

No. 68210015 and awarding to candidate Amir-Oden Balindong all the 88 votes in the election return for Precinct 47A/48A with Serial 6821008, which were earlier credited by the MBC to Anwar. The Resolution is anchored on the following findings:

“An examination of the Election Return with Serial No. 68210008 from Precinct No. 47A/48A reveals that it contains erasures w ith resto the votes of private respondent mayoralty candidate Amir-Oden S. Balindong (‘Amir-Oden’). The number of votes for him in taras an

figures and words was crossed-out while the zero (0) vote for private respondent Anwar Balindong was superimposed and changedeighty-eight (88) in words and figures. Also, on the first column adjacent to the name of Anwar Balindong, it is apparent that the figure z(0) was superimposed by five (5) bars. The members of the Board of Election Inspectors (BEI) should have countersigned these alteratioassuming they were made for the purpose of correction.

On the other hand, a perusal of the election return for Precinct No. 80A with Serial No. 68210015 gives the impression that the voobtained by private respondent Amir-Oden Balindong as well as the signature of the member of the BEI reflected in the columns w

erased by a white substance. The same holds true even with respect to the votes garnered by vice-mayoralty candidates Kamar Mauand Maongca Paramata.” *30+

Thus, the COMELEC ordered the MBC to reconvene, take into account its directives with respect to the two (2) returns and thereaproclaim the winning mayoralty candidate.[31]

Not satisfied with the COMELEC Resolution, Anwar filed the present petition. He faults the COMELEC for having acted with grave abusdiscretion amounting to lack or excess of jurisdiction, firstly, in taking cognizance of the consolidated cases in the first instance withreferring them to either one of its divisions, in violation of the Constitution; and secondly, in taking action on the returns for Precincts and 47A/48A although Aklima did not object to their inclusion for canvass at the MBC level, thereby violating Republic Act No. 7166 (No. 7166), aggravated at that by its selective or disparate treatment of the two (2) returns. He adds that even assuming that the COMEcould take cognizance of the returns despite Aklima’s failure to object thereto at the MBC level, the proper course of action waorder the BEIs to recount the votes in consonance with Section 235 of the Omnibus Election Code (OEC).[32]

n his Comment[33] dated August 19, 2002, Aklima insists that the COMELEC en banc had jurisdiction to hear and decide the consolidacases by virtue of COMELEC Resolution No. 0046[34] dated January 19, 2000. Asserting that the COMELEC en banc did not commit gabuse of discretion for not ordering a recount of the ballots in Precincts 80A and 47A/48A, he posits that it is beyond the authority of COMELEC to order motu propio a recount of the ballots since under the law it is incumbent upon the board of canvassers or any affeccandidate to initiate the ballot recount.

Subsequent to the filing of the present petition before this Court, on August 21, 2002, the COMELEC issued an Order[35] constituting a MBC. Anwar filed a motion[36] to hold the implementation of the Order in abeyance, which the COMELEC granted in its Order[37] daSeptember 18, 2002.

The issues in this case are the following:







The precipitate exclusion from canvass of the return for Precinct 80A resulted in the unjustified disenfranchisement of the voters therThis could have been avoided had the COMELEC availed of the other courses of action mentioned in the law, namely: the examinationthe other copies of the return and the recount of the votes by the BEI.

As for the return for Precinct 47A/48A, the COMELEC’s move unceremoniously deprived Anwar of 88 precious votes which were cre ditea non-contender, Amir-Oden Balindong. On record is the Joint Affidavit[59] of the members of the BEI of the precinct attesting to the that since it was Anwar, not Amir-Oden Balindong, who garnered 88 votes they had to rectify the mistaken entries they made on the lin the return opposite the names of Anwar and Amir-Oden Balindong and initial the corresponding corrections, which they did. Also

record are the Statement of Votes[60] covering the canvass of the 84 election precincts of Malabang which show that Amir-Oden Balindgarnered a total of 11 votes only in eight (8) precincts, receiving zero (0) vote or no vote at all in the other 76 precincts, while An

garnered votes in all the precincts, receiving as many as 125 votes in a single precinct. All these should have prompted the COMELEexamine the other copies of the returns or order a vote recount, as ordained in Section 235 of the OEC.

The COMELEC chose, however, to pursue a selective or disparate approach to the two (2) returns. It excluded the return for Precinct outright but opted to deny Anwar all of the 88 votes in the return for Precinct 47A/48A. Obviously, the twin but divergent moves unlessaside could make Aklima “win” according to the COMELEC’s abbreviated count.

n sum, the COMELEC acted without jurisdiction, exceeded its jurisdiction and committed grave abuse of discretion in promulgating assailed Resolution.

WHEREFORE, the Petition is GRANTED. The Resolution of the Commission on Elections dated July 4, 2002 is SET ASIDE. The Commissioordered to assign SPC No. 01-063 and SPC No. 01-175 to one of its divisions, which is hereby directed to resolve the same with deliberdispatch in accordance with this Decision.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Carpio-Morales, Callejo,and Azcuna, JJ., concur.Ynares-Santiago and Corona, JJ., on leave.

EN BANC

[G.R. No. 105628. August 6, 1992.]

RODULFO SARMIENTO, Petitioner, v. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF VIRAC and JOSE "CI

ALBERTO II, Respondents.

[G.R. No. 105725. August 6, 1992.]

EMMANUEL R. ALFELOR, Petitioner, v. COMMISSION ON ELECTIONS, THE CITY BOARD OF CANVASSERS OF IRIGA CITY and JOSVILLANUEVA, Respondents.

[G.R. No. 105727. August 6, 1992.]

LEANDRO I. VERCELES, SR., Petitioner, v. COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF CATANDUANES ROSALIE ALBERTO-ESTACIO, Respondents.

[G.R. No. 105730. August 6, 1992.]

JESUS TYPOCO , JR., Petitioner, v. COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF CAMARINES NORTE, MUNICIPAL BOARD OF CANVASSERS OF JOSE PANGANIBAN, CAMARINES NORTE, Respondents.

[G.R. No. 105771. August 6, 1992.]

ALBERTO U. GENOVA, JR., Petitioner, v. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF CABUSAO, NEBRIDOSANTIAGO, and EUGENIO AGUILAR, Respondents.

[G.R. No. 105778. August 6, 1992.]

MARIO S. MANLICLIC, Petitioner, v. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF GEN. NATIVIDAD, NUEVA EC

BOARD OF ELECTION INSPECTORS OF PRECINCT NOS. 12-A AND 13, BARANGAY MATAAS NA KAHOY, GEN. NATIVIDAD, NUEVA EC



BOARD OF ELECTION INSPECTORS OF PRECINCT NOS. 15-A, BARANGAY PICALEON, GEN. NATIVIDAD, NUEVA ECIJA; PRECINCT NO. 25-ASAPANG BATO, GEN. NATIVIDAD, NUEVA ECIJA; THE ELECTION REGISTRAR and APOLONIO PASCUAL, Respondents.

[G.R. No. 105797. August 6, 1992.]

FRANCISCO G. RABAT, Petitioner, v. COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF DAVAO ORIENTAL ROSALIND YBASCO LOPEZ, Respondents.

[G.R. No. 105919. August 6, 1992.]

DATU MOHAMMAD A. SINSUAT, Petitioner, v. COMMISSION ON ELECTIONS, DATU MICHAEL SINSUAT and ATTY. RUBEN PLATRespondents.

[G.R. No. 105977. August 6, 1992.]

ROSARIO A. VELASCO, Petitioner, v. COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF TERNATE, CAVITE, CONDRADO LINDO, Respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; SECTION 3, SUBDIVISION C, ARTICLE IX OF THE 1987 CONSTITUTI

ELECTION CASES INCLUDING PRE-PROCLAMATION CONTROVERSIES MUST FIRST BE HEARD AND DECIDED IN DIVISION; COMMISSIONBANC WITHOUT AUTHORITY TO HEAR AND DECIDE CASES AT THE FIRST INSTANCE. — Section 3, subdivision C, Article IX of the 1Constitution expressly provides: "SEC. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its ruleprocedure in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heand decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc." It is clear fthe abovequoted provision of the 1987 Constitution that election cases include pre-proclamation controversies, and all such cases mfirst be heard and decided by a Division of the Commission. The Commission, sitting en banc, does not have the authority to hear adecide the same at the first instance.

2. ID.; ID.; ID.; COMELEC RULES OF PROCEDURE; PRE-PROCLAMATION CASES CLASSIFIED AS SPECIAL CASES; SPECIAL CASES AAPPEALS FROM RULINGS OF BOARD OF CANVASSERS COGNIZABLE EXCLUSIVELY BY DIVISIONS; MOTION TO RECONSIDER DECISIONRESOLUTION OF DIVISION COGNIZABLE BY COMMISSION EN BANC. — In the COMELEC RULES OF PROCEDURE, pre-proclamation cases

classified as Special Cases and, in compliance with the above provision of the Constitution, the two (2) Divisions of the Commissionvested with the authority to hear and decide these Special Cases. Rule 27 thereof governs Special Cases; specifically, Section 9 of the Rule provides that appeals from rulings of the Board of Canvassers are cognizable by any of the Divisions to which they are assigned andby the Commission en banc. Said Section reads: "SEC. 9. Appeals from rulings of Board of Canvassers. — (a) A party aggrieved by an ruling of the board of canvassers who had stated orally his intent to appeal said ruling shall, within five days following receipt of a copthe written ruling of the board of canvassers, file with the Commission a verified appeal, furnishing a copy thereof to the boardcanvassers and the adverse party. (b) The appeal filed with the Commission shall be docketed by the Clerk of Court concerned. (c) answer/opposition shall be verified. (d) The Division to which the case is assigned shall immediately set the case for hearing.." . . A motto reconsider the decision or resolution of the Division concerned may be filed within five (5) days from its promulgation. The Clerk of Coof the Division shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner of such fact; in turn, the lashall certify the case to the Commission en banc. Thereafter, the Clerk of Court of the Commission shall calendar the motion reconsideration for the resolution of the Commission en banc within ten (10) days from the certification. Indisputably then, the COMEen banc acted without jurisdiction, or with grave abuse of discretion, when it resolved the appeals of petitioners in the abovementio

Special Cases without first referring them to any of its Divisions. Said resolutions are, therefore, null and void and must be set asConsequently, the appeals are deemed pending before the Commission for proper referral to a Division.

3. ID.; ID.; ID.; SECTION 16, REPUBLIC ACT NO. 7166; PRE-PROCLAMATION CASES PENDING BEFORE THE COMMISSION DEEMTERMINATED AT THE BEGINNING OF TERM OF OFFICE INVOLVED. — Section 16 of R.A. No. 7166 provides that all pre-proclamation cpending before it shall be deemed terminated at the beginning of the term of the office involved. The said section provides as follows: "All pre-proclamation cases pending before the Commission shall be deemed terminated at the beginning of the term of the office invoand the rulings of the boards of canvassers concerned shall be deemed affirmed, without prejudice to the filing of a regular election proby the aggrieved party. However, proceedings may continue when on the basis of the evidence thus far presented, the Commissdetermines that the petition appears meritorious and accordingly issues an order for the proceeding to continue or when an approprorder has been issued by the Supreme Court in a petition for certiorari." The terms of the offices involved in the Special Cases subjecthese petitions commenced at noon of 30 June 1992. These cases have thus been rendered moot and such a resolution would only be

exercise in futility.



CRUZ, J., separate opinion:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; SECTION 3, SUBDIVISION C, ARTICLE IX OF THE 1987 CONSTITUTIJURISDICTIONAL AND NOT MERELY DIRECTORY; ALL ELECTION CASES HEARD FIRST BY DIVISION; DECISION OF DIVISION RECONSIDEONLY BY COMMISSION EN BANC. — Article IX-C, Section 3, says quite clearly: Sec. 3. The Commission on Elections may sit en banc or in divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamacontroversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shaldecided by the Commission en banc. The language of the provision suggests that it is jurisdictional and not merely directory and therefrequires that all election cases be heard first by the division, whose decision may be reconsidered only by the Commission en banc.

FELICIANO, J., concurring and dissenting:chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; SECTION 2, SUBDIVISION C, ARTICLE IX OF THE 1987 CONSTITUTIPOWERS AND FUNCTIONS EXERCISED BY COMMISSION EN BANC NOT DISTINGUISHED FROM THOSE EXERCISED BY DIVISIONS. — mportant to start with the general proposition that the Comelec may sit En Banc or in two (2) divisions. It is also helpful to note that

powers and functions of the Commission as specified in Article IX(C)(2) of the Constitution are lodged in "The Commission on Elections" whole; Section 2 did not try to distinguish between powers and functions which are to be exercised En Banc and those to be exercisedDivisions.

2. ID.; ID.; SECTION 3, SUBDIVISION C, ARTICLE IX OF THE 1987 CONSTITUTION; FUNDAMENTAL OBJECTIVE OF THE ARTICLE. — second important constitutional principle is that the fundamental objective of the above-quoted Article IX(C)(3) is the expediting ofdisposition of both election cases and pre-proclamation controversies. We have, in many cases, stressed heavily the need for disposing

election protests as rapidly as possible. We have also many times ruled that pre-proclamation controversies are administrative summary in character and are to be resolved with the utmost dispatch subject, of course, to the requirements of notice to the parties fairness in procedure.

3. ID.; ID.; ID.; TERM "ELECTION CASES" REFERS ONLY TO ELECTION CONTESTS OR ELECTION PROTESTS AND NOT TO PPROCLAMATION CONTROVERSIES. — Thirdly, I submit it is clear that the term "election cases" in the last sentence of Article IX(C)(3properly read as referring to election contests or election protests, and not to all proceedings or controversies arising out of or relatinelections. Article IX(C)(3), in its first sentence, clearly distinguishes "election cases" from "pre-proclamation controversies," and extendsconstitutional objective of expeditious disposition not only to "election cases" but also to "pre-proclamation controversies." Thus, whilesecond sentence of Article IX(C)(3) speaks of "all such election cases," there is no indiscriminate lumping together of election protestelection cases properly so-called with pre-proclamation controversies.

4. ID.; ID.; ID.; COMELEC RULES OF PROCEDURE; NOT INTENDED TO ESTABLISH WALL OF SEPARATION BETWEEN COMMISSIONBANC AND DIVISIONS; COMMISSION EN BANC AUTHORIZED TO INTERVENE OR ACT IN ORDINARY ACTIONS ASSIGNED TO DIVISIONS.seems to me, however, that Rules 3(3) and 27(9)(d) of the Comelec Rules were not intended to establish a wall of separation between Divisions and the Commission En Banc. Thus, for instance, while election cases properly so-called are designated as "ordinary actions" assigned to the Divisions, the Comelec Rules authorize the Commission itself to intervene or act in such ordinary actions. For instance: "20 — Election Protests . . . Sec. 6. Revision of ballots. — When the allegations in a protest or counter-protest so warrant, or whenever inopinion of the Commission or Division the interest of justice so demands, it shall immediately order the ballot boxes containing ballots their keys, list of voters with voting records, book of voters, and other documents used in the election to be brought before Commission, and shall order the revision of the ballots. For this purpose, the Commission may constitute a committee on the revisioballots, to be composed of a chairman, who shall be a lawyer from the Commission, and two members, one member and his substitutbe proposed by the protestant, and the other member and his substitute by the protestee. The revision of the ballots shall be made inoffice of the Clerk of Court concerned at such places as the Commission or the Division shall designate, and shall be completed within th(3) months from the date of the order, unless otherwise directed by the Commission. Sec. 7. Partial determination of the case. —

Commission or the Division concerned may direct the protestant and, in case there is a counter-protest, the counter-protestant, to stand designate in writing his or their choice of the precincts, numbering not more than twenty-five (25%) per centum of the total numbeprecincts involved in the protest and counter-protest, if any, whose ballot boxes shall first be opened, and shall thereafter make a padetermination of the case . . ." Rule 30 — Injunction Sec. 1. Preliminary Injunction. — The Commission or any of its Divisions may gpreliminary injunction in any ordinary action, special action, special case or special relief pending before it.

5. ID.; ID.; ID.; ID.; CERTAIN PRE-PROCLAMATION CONTROVERSIES ALLOWED TO BE FILED DIRECTLY WITH THE COMMISSIONBANC. — Another difficulty with the position taken by the majority is that under the Comelec Rules, not all pre-proclamation controverare necessarily assigned to a Division. There are certain pre-proclamation controversies which, under the Comelec Rules, are to be fdirectly with the Commission and to be heard and decided by the Commission En Banc: "Rule 27 — Pre-Proclamation Controversies . . . 4. Pre-proclamation controversies which may be filed directly with the Commission. — (a) The following pre-proclamation controvermay be filed directly with the Commission: (1) When the issue involves the illegal composition or proceedings of the board of canvasser

when a majority or all the of the members do not hold legal appointments or are in fact usurpers; or when the canvassing has been a m







x x x

A motion to reconsider the decision or resolution of the Division concerned may be filed within five (5) days from its promulgation. 3 Clerk of Court of the Division shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner of such factturn, the latter shall certify the case to the Commission en banc. 4 Thereafter, the Clerk of Court of the Commission shall calendar motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification. 5

ndisputably then, the COMELEC en banc acted without jurisdiction, or with grave abuse of discretion, when it resolved the appeal

petitioners in the abovementioned Special Cases without first referring them to any of its Divisions. Said resolutions are, t herefore, nullvoid and must be set aside. Consequently, the appeals are deemed pending before the Commission for proper referral to a Division.

A resolution directing the COMELEC to assign said Special Cases to the Divisions pursuant to Section 8, Rule 3 of its Rules on assignmencases would, logically, be in order. However, Section 16 of R.A No. 7166 6 provides that all pre-proclamation cases pending before it shadeemed terminated at the beginning of the term of the office involved. The said section provides as follows:chanrob1es virtual 1aw libra

x x x

"All pre-proclamation cases pending before the Commission shall be deemed terminated at the beginning of the term of the office invoand the rulings of the boards of canvassers concerned shall be deemed affirmed, without prejudice to the filing of a regular election proby the aggrieved party. However, proceedings may continue when on the basis of the evidence thus far presented, the Commiss

determines that the petition appears meritorious and accordingly issues an order for the proceeding to continue or when an approprorder has been issued by the Supreme Court in a petition for certiorari."cralaw virtua1aw library

The terms of the offices involved in the Special Cases subject of these petitions commenced at noon of 30 June 1992. 7 These cases hthus been rendered moot and such a resolution would only be an exercise in futility.

Accordingly, the instant petitions are DISMISSED without prejudice to the filing by petitioners of regular election protests. If the wincandidates for the positions involved in the Special Cases subject of these petitions have already been proclaimed, the running of the peto file the protests shall be deemed suspended by the pendency of such cases before the COMELEC and of these petitions before this Co

The Temporary Restraining Orders issued in G.R. No. 105727, G.R. No. 105730 and G.R. No. 105797 are hereby LIFTED.

SO ORDERED.

Narvasa C.J., Gutierrez, Jr., Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Romero, Nocon and Bellosillo, JJ., concur.

[G.R. No. 90878. January 29, 1990.]

PABLITO V. SANIDAD, Petitioner, v. THE COMMISSION ON ELECTIONS, Respondent.

SYLLABUS

1. CONSTITUTIONAL LAW; COMELEC RESOLUTION NO. 2167, SECTION 19 THEREOF; HELD UNCONSTITUTIONAL AS AN ABRIDGMOF FREEDOM OF EXPRESSION. — Section 19 of Comelec Resolution No. 2167, which provides: "Section 19. Prohibition on columncommentators or announcers. — During the plebiscite campaign period, on the day before and on plebiscite day, no mass media columcommentator, announcer or personality shall use his column or radio or television time to campaign for or against the plebiscite issuRespondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not violative of the constitutioguarantees of the freedom of expression and of the press. Rather, it is a valid implementation of the power of the Comelec to supervise regulate media during election or plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic ofPhilippines. It is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing his v iews and or fcampaigning for or against the Organic Act. He may still express his views or campaign for or against the act through the Comelec space airtime. This is provided under Sections 90 and 92 of BP 881. The contention is without merit. While the limitation does not absolutely petitioner’s freedom of expression, it is still a restriction on his choice of the forum where he may express his view. No reason wadvanced by respondent to justify such abridgement. We hold that this form of regulation is tantamount to a restriction of pe tition

freedom of expression for no justifiable reason. Plebiscite issues are matters of public concern and importance. The people’s ri ght to



nformed and to be able to freely and intelligently make a decision would be better served by access to an unabridged discussion ofssues, including the forum. The people affected by the issues presented in a plebiscite should not be unduly burdened by restrictions

the forum where the right to expression may be exercised. Comelec spaces and Comelec radio time may provide a forum for expressionthey do not guarantee full dissemination of information to the public concerned because they are limited to either specific portionnewspapers or to specific radio or television times.

2. ID.; RULING IN THE CASE OF BADOY JR. V. COMELEC (L-32546, OCTOBER 16, 1970), NOT APPLICABLE IN A PLEBISCITE; REATHEREFOR. — In the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain formelection propaganda was assailed, We ruled therein that the prohibition is a valid exercise of the police power of the state "to prevent perversion and prostitution of the electoral apparatus and of the denial of equal protection of the laws." The evil sought to be prevente

an election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some spepolitical matter unlike in an election where votes are cast in favor of specific persons for some office. In other words, the electorate is asto vote for or against issues, not candidates in a plebiscite.

D E C I S I O N

MEDIALDEA, J.:

This is a petition for certiorari assailing the constitutionality of Section 19 of Comelec Resolution No. 2167 on the ground that it violatesconstitutional guarantees of the freedom of expression and of the press.

On October 23, 1989, Republic Act No. 6766, entitled "AN ACT PROVIDING FOR AN ORGANIC ACT FOR THE CORDILLERA AUTONOMOREGION" was enacted into law. Pursuant to said law, the City of Baguio and the Cordilleras which consist of the provinces of BengMountain Province, Ifugao, Abra and Kalinga-Apayao, all comprising the Cordillera Autonomous Region, shall take part in a plebiscite forratification of said Organic Act originally scheduled last December 27, 1989 which was, however, reset to January 30, 1990 by virtueComelec Resolution No. 2226 dated December 27, 1989.

The Commission on Elections, by virtue of the power vested by the 1987 Constitution, the Omnibus Election Code (BP 881), said R.A. 6and other pertinent election laws, promulgated Resolution No. 2167, to govern the conduct of the plebiscite on the said Organic Act forCordillera Autonomous Region.

n a petition dated November 20, 1989, herein petitioner Pablito V. Sanidad, who claims to be a newspaper columnist of the "OVERVIE

for the BAGUIO MIDLAND COURIER, a weekly newspaper circulated in the City of Baguio and the Cordilleras, assailed the constitutionof Section 19 of Comelec Resolution No. 2167, which provides:jgc:chanrobles.com.ph

"Section 19. Prohibition on columnists, commentators or announcers. — During the plebiscite campaign period, on the day beforeon plebiscite day, no mass media columnist, commentator, announcer or personality shall use his column or radio or television timcampaign for or against the plebiscite issues."cralaw virtua1aw library

t is alleged by petitioner that said provision is void and unconstitutional because it violates the constitutional guarantees of the freedomexpression and of the press enshrined in the Constitution.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

Unlike a regular newsreporter or news correspondent who merely reports the news, petitioner maintains that as a columnist, his coluobviously and necessarily contains and reflects his opinions, views and beliefs on any issue or subject about which he writes. Petitiobelieves that said provision of COMELEC Resolution No. 2167 constitutes a prior restraint on his constitutionally-guaranteed freedom of

press and further imposes subsequent punishment for those who may violate it because it contains a penal provision,follows:jgc:chanrobles.com.ph

"Article XIII, Section 122, Election Offenses and Banned Acts or Activities. — Except to the extent that the same may not be applicable plebiscite, the banned acts/activities and offenses defined in and penalized by the Omnibus Election Code (Sections 261, 262, 263 and Article XXII, B.P Blg. 881) and the pertinent provisions of R.A. No. 6646 shall be applicable to the plebiscite governed by tResolution."cralaw virtua1aw library

Petitioner likewise maintains that if media practitioners were allowed to express their views, beliefs and opinions on the issue submittea plebiscite, it would in fact help in the government drive and desire to disseminate information, and hear, as well as ventilate, all sidethe issue.



On November 28, 1989, We issued a temporary restraining order enjoining respondent Commission on Elections from enforcing mplementing Section 19 of Resolution No. 2167. We also required the respondent to comment on the petition.

On January 9, 1990, respondent Commission on Elections, through the Office of the Solicitor General filed its Comment.

Respondent Comelec maintains that the questioned provision of Comelec Resolution No. 2167 is not violative of the constitutioguarantees of the freedom of expression and of the press. Rather, it is a valid implementation of the power of the Comelec to supervise regulate media during election or plebiscite periods as enunciated in Article IX-C, Section 4 of the 1987 Constitution of the Republic ofPhilippines.

t is stated further by respondent that Resolution 2167 does not absolutely bar petitioner from expressing his views and or fcampaigning for or against the Organic Act. He may still express his views or campaign for or against the act through the Comelec space airtime. This is provided under Sections 90 and 92 of BP 881:jgc:chanrobles.com.ph

"Section 90. Comelec Space. — The Commission shall procure space in at least one newspaper of general circulation in every provior city: Provided, however, That in the absence of said newspaper, publication shall be done in any other magazine or periodical in sprovince or city which shall be known as "Comelec Space" wherein candidates can announce their candidacy. Said space shall be allocafree of charge, equally and impartially within the area in which the newspaper is circulated.

"Section 92. Comelec Time. — The Commission shall procure radio and television time to be known as "Comelec Time" which shalallocated equally and impartially among the candidates within the area of coverage of all radio and television stations. For this purpose,franchise of all radio broadcasting and television stations are hereby amended so as to provide radio or television time, free of chaduring the period of the campaign."cralaw virtua1aw library

Respondent Comelec has relied much on Article IX-C of the 1987 Constitution and Section 11 of R.A. 6646 as the basis for the promulgaof the questioned Section 19 of Comelec Resolution 2167.chanrobles law library

Article IX-C of the 1987 Constitution provides:jgc:chanrobles.com.ph

"The Commission may, during the election period, supervise or regulate the enjoyment or utilization of all franchises or permits for operation of transportation and other public utilities, media of communication or information, all grants, special privileges, or concessgranted by the Government or any subdivision, agency or instrumentality thereof, including any government-owned or controcorporation or its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity, time, and space, and the right to rencluding reasonable, equal rates therefor, for public information campaigns and forums among candidates in connection with the objec

of holding free, orderly, honest, peaceful and credible elections."cralaw virtua1aw library

Similarly, Section 11 of Republic Act No. 6646 (The Electoral Reform Law of 1987) likewise provides:jgc:chanrobles.com.ph

"Prohibited forms of election Propaganda. — In addition to the forms of election propaganda prohibited under Section 85 of BPambansa Blg. 881, it shall be unlawful: . . . .

"(b) for any newspaper, radio, broadcasting or television station, or other mass media, or any person making use of the mass medisell or to give free of charge print space or air time for campaign or other political purposes except to the Commission as provided unSections 90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator, announcer, or personality who is a candidateany elective office shall take a leave of absence from his work as such during the campaign period." (Emphasis ours)

However, it is clear from Art. IX-C of the 1987 Constitution that what was granted to the Comelec was the power to supervise and regulthe use and enjoyment of franchises, permits or other grants issued for the operation of transportation or other public utilities, medi

communication or information to the end that equal opportunity, time and space, and the right to reply, including reasonable, equal ratherefor, for public information campaigns and forums among candidates are ensured. The evil sought to be prevented by this provisiothe possibility that a franchise holder may favor or give any undue advantage to a candidate in terms of advertising space or raditelevision time. This is also the reason why a "columnist, commentator, announcer or personality, who is a candidate for any elective os required to take a leave of absence from his work during the campaign period (2nd par. Section 11(b) R.A. 6646). It cannot be gains

that a columnist or commentator who is also a candidate would be more exposed to the voters to the prejudice of other candidates unrequired to take a leave of absence.

However, neither Article IX-C of the Constitution nor Section 11(b), 2nd par. of R.A. 6646 can be construed to mean that the Comelec also been granted the right to supervise and regulate the exercise by media practitioners themselves of their right to expression duplebiscite periods. Media practitioners exercising their freedom of expression during plebiscite periods are neither the franchise holdersthe candidates. In fact, there are no candidates involved in a plebiscite. Therefore, Section 19 of Comelec Resolution No. 2167 has

statutory basis.



n the case of Badoy, Jr. v. Comelec, L-32546, Oct. 16, 1970, where the constitutionality of the prohibition of certain forms of electpropaganda was assailed, We ruled therein that the prohibition is a valid exercise of the police power of the state "to prevent perversion and prostitution of the electoral apparatus and of the denial of equal protection of the laws." The evil sought to be preventean election which led to Our ruling in that case does not obtain in a plebiscite. In a plebiscite, votes are taken in an area on some spepolitical matter unlike in an election where votes are cast in favor of specific persons for some office. In other words, the electorate is asto vote for or against issues, not candidates in a plebiscite.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

Anent respondent Comelec’s argument that Section 19 of Comelec Resolution 2167 does not absolutely bar petitioner -columnist fexpressing his views and or from campaigning for or against the organic act because he may do so through the Comelec space and

Comelec radio/television time, the same is not meritorious. While the limitation does not absolutely bar petitioner’s freedom of expresst is still a restriction on his choice of the forum where he may express his view. No reason was advanced by respondent to justify suabridgement. We hold that this form of regulation is tantamount to a restriction of petitioner’s freedom of expression for no justifireason.

Plebiscite issues are matters of public concern and importance. The people’s right to be informed and to be able to freely and intellige

make a decision would be better served by access to an unabridged discussion of the issues, including the forum. The people affectedthe issues presented in a plebiscite should not be unduly burdened by restrictions on the forum where the right to expression mayexercised. Comelec spaces and Comelec radio time may provide a forum for expression but they do not guarantee full disseminationformation to the public concerned because they are limited to either specific portions in newspapers or to specific radio or televis

times.

ACCORDINGLY, the instant petition is GRANTED. Section 19 of Comelec Resolution No. 2167 is declared null and void and unconstitutio

The restraining order herein issued is hereby made permanent.chanrobles.com.ph : virtual law library

SO ORDERED.

EN BANC

[G.R. No. 133486. January 28, 2000.]

ABS-CBN BROADCASTING CORPORATION, Petitioner, v. COMMISSION ON ELECTIONS, Respondent.

D E C I S I O N

PANGANIBAN, J.:

The holding of exit polls and the dissemination of their results through mass media constitute an essential part of the freedoms of speand of the press. Hence, the Comelec cannot ban them totally in the guise of promoting clean, honest, orderly and credible elections. Qthe contrary, exit polls — properly conducted and publicized — can be vital tools in eliminating the evils of election-fixing and fraNarrowly tailored countermeasures may be prescribed by the Comelec so as to minimize or suppress the incidental problems in conduct of exit polls, without transgressing in any manner the fundamental rights of our people.

The Case and the Facts

Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission on Elections (Comelec) en banc Resolution98-1419 1 dated April 21, 1998. In the said Resolution, the poll body

"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or any other groups, its agents or representatives frconducting such exit survey and to authorize the Honorable Chairman to issue the same."cralaw virtua1aw library

The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source that ABS-CBN (Lopez Group) has preparproject, with PR groups, to conduct radio-TV coverage of the elections and to make [an] exit survey of the vote during the elections national officials particularly for President and Vice President, results of which shall be [broadcast] immediately." 2 The electoral bbelieved that such project might conflict with the official Comelec count, as well as the unofficial quick count of the National MovementFree Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to undertake the exit survey.



On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We directed the Comelec to cease and deuntil further orders, from implementing the assailed Resolution or the restraining order issued pursuant thereto, if any. In fact, the polls were actually conducted and reported by media without any difficulty or problem.

The Issues

Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave abuse of discretion amounting to a lacexcess of jurisdiction when it approved the issuance of a restraining order enjoining the petitioner or any [other group], its agentsrepresentatives from conducting exit polls during the . . . May 11 elections." 3

n his Memorandum, 4 the solicitor general, in seeking to dismiss the Petition, brings up additional issues: (1) mootness and (2) prematubecause of petitioner’s failure to seek a reconsideration of the assailed Comelec Resolution.chanrobles.com : law library


The Petition 5 is meritorious.

Procedural Issues:chanrob1es virtual 1aw library

Mootness and Prematurity

The solicitor general contends that the petition is moot and academic, because the May 11, 1998 election has already been held and dwith. Allegedly, there is no longer any actual controversy before us.

The issue is not totally moot. While the assailed Resolution referred specifically to the May 11, 1998 election, its implications on people’s fundamental freedom of expression transcend the past election. The holding of periodic elections is a basic feature of democratic government. By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue now will opostpone a task that could well crop up again in future elections. 6

n any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the duty to formulate guiding and controlconstitutional principles, precepts, doctrines, or rules. It has the symbolic function of educating bench and bar on the extent of protecgiven by constitutional guarantees." 7 Since the fundamental freedoms of speech and of the press are being invoked here, we hresolved to settle, for the guidance of posterity, whether they likewise protect the holding of exit polls and the dissemination of d

derived therefrom.

The solicitor general further contends that the Petition should be dismissed for petitioner’s failure to exhaust available remedies before

ssuing forum, specifically the filing of a motion for reconsideration.

This Court, however, has ruled in the past that this procedural requirement may be glossed over to prevent a miscarriage of justice, 8 wthe issue involves the principle of social justice or the protection of labor, 9 when the decision or resolution sought to be set aside nullity, 10 or when the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy available. 11

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only twenty (20) days before the election itBesides, the petitioner got hold of a copy thereof only on May 4, 1998. Under the circumstances, there was hardly enough opportunitmove for a reconsideration and to obtain a swift resolution in time for the May 11, 1998 elections. Moreover, not only is time of essence; the Petition involves transcendental constitutional issues. Direct resort to this Court through a special civil action for certiora

therefore justified.

Main Issue:chanrob1es virtual 1aw library

Validity of Conducting Exit Polls

An exit poll is a species of electoral survey conducted by qualified individuals or group of individuals for the purpose of determining probable result of an election by confidentially asking randomly selected voters whom they have voted for, immediately after they hofficially cast their ballots. The results of the survey are announced to the public, usually through the mass media, to give an advaoverview of how, in the opinion of the polling individuals or organizations, the electorate voted. In our electoral history, exit polls hadbeen resorted to until the recent May 11, 1998 elections.



n its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of the mass media, committed to repbalanced election-related data, including "the exclusive results of Social Weather Station (SWS) surveys conducted in fifteen administraregions."cralaw virtua1aw library

t argues that the holding of exit polls and the nationwide reporting of their results are valid exercises of the freedoms of speech and ofpress. It submits that, in precipitately and unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abuts discretion and grossly violated the petitioner’s constitutional rights.

Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution, it gravely abused its discretion. It insthat the issuance thereof was "pursuant to its constitutional and statutory powers to promote a clean, honest, orderly and credible May

1998 elections" ; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It contends that "the conduct of surveys might unduly confuse and influence the voters," and that the surveys were designed "to condition the minds of people and caconfusion as to who are the winners and the [losers] in the election," which in turn may result in "violence and anarchy."cralaw virtuaibrary

Public respondent further argues that "exit surveys indirectly violate the constitutional principle to preserve the sanctity of the ballots,the "voters are lured to reveal the contents of ballots," in violation of Section 2, Article V of the Constitution; 12 and relevant provisionthe Omnibus Election Code. 13 It submits that the constitutionally protected freedoms invoked by petitioner "are not immune to regulaby the State in the legitimate exercise of its police power," such as in the present case.

The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear and present danger of destroying credibility and integrity of the electoral process," considering that they are not supervised by any government agency and can in generamanipulated easily. He insists that these polls would sow confusion among the voters and would undermine the official tabulation of vo

conducted by the Commission, as well as the quick count undertaken by the Namfrel.

Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be more narrowly defined: May the Comen the exercise of its powers, totally ban exit polls? In answering this question, we need to review quickly our jurisprudence on

freedoms of speech and of the press.

Nature and Scope of Freedoms

of Speech and of the Press

The freedom of expression is a fundamental principle of our democratic government. It "is a ‘preferred’ right and, therefore, stands ohigher level than substantive economic or other liberties. . . . [T]his must be so because the lessons of history, both political and le

llustrate that freedom of thought and speech is the indispensable condition of nearly every other form of freedom." 14

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or of the press. 15 In the landmark cGonzales v. Comelec, 16 this Court enunciated that at the very least, free speech and a free press consist of the liberty to discuss puband truthfully any matter of public interest without prior restraint.chanrobles.com : virtuallawlibrary

The freedom of expression is a means of assuring individual self-fulfillment, of attaining the truth, of securing participation by the peopsocial and political decision-making, and of maintaining the balance between stability and change. 17 It represents a profound commitmto the principle that debates on public issues should be uninhibited, robust, and wide open. 18 It means more than the right to apprexisting political beliefs or economic arrangements, to lend support to official measures, or to take refuge in the existing climate of opinon any matter of public consequence. And paraphrasing the eminent Justice Oliver Wendell Holmes, 19 we stress that the freedencompasses the thought we hate, no less than the thought we agree with.

Limitations

The realities of life in a complex society, however, preclude an absolute exercise of the freedoms of speech and of the press . Such freedcould not remain unfettered and unrestrained at all times and under all circumstances. 20 They are not immune to regulation by the Stn the exercise of its police power. 21 While the liberty to think is absolute, the power to express such thought in words and deeds imitations.

n Cabansag v. Fernandez 22 this Court had occasion to discuss two theoretical tests in determining the validity of restrictions to sfreedoms, as follows:jgc:chanrobles.com.ph

"These are the ‘clear and present danger’ rule and the ‘dangerous tendency’ rule. The first, as interpreted in a number of cases, means the evil consequence of the comment or utterance must be ‘extremely serious and the degree of imminence extremely high’ befor e

utterance can be punished. The danger to be guarded against is the ‘substantive evil’ sought to be prevented. . . ." 23



"The ‘dangerous tendency’ rule, on the other hand, may be epitomized as follows: If the words uttered create a dangerous tendency wthe state has a right to prevent, then such words are punishable. It is not necessary that some definite or immediate acts of force, violeor unlawfulness be advocated. It is sufficient that such acts be advocated in general terms. Nor is it necessary that the language usedreasonably calculated to incite persons to acts of force, violence, or unlawfulness. It is sufficient if the natural tendency and probable efof the utterance be to bring about the substantive evil which the legislative body seeks to prevent." 24

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its earlier decisions in Primicias v. Fugosoand American Bible Society v. City of Manila; 26 as well as in later ones, Vera v. Arca, 27 Navarro v. Villegas, 28 Imbong v. Ferrer, 29Umpar Adiong v. Comelec 30 and, more recently, in Iglesia ni Cristo v. MTRCB. 31 In setting the standard or test for the "clear and pres

danger" doctrine, the Court echoed the words of Justice Holmes: "The question in every case is whether the words used are used in scircumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Conghas a right to prevent. It is a question of proximity and degree." 32

A limitation on the freedom of expression may be justified only by a danger of such substantive character that the state has a righprevent. Unlike in the "dangerous tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the telement; the danger must not only be probable but very likely to be inevitable. 33 The evil sought to be avoided must be so substantivto justify a clamp over one’s mouth or a restraint of a writing instrument. 34

Justification for a

Restriction

Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction is treated an exemption. The poweexercise prior restraint is not to be presumed; rather the presumption is against its validity. 35 And it is respondent’s burden to overthsuch presumption. Any act that restrains speech should be greeted with furrowed brows, 36 so it has been said.chanrobles virtua| |ibrary

To justify a restriction, the promotion of a substantial government interest must be clearly shown. 37 Thus:jgc:chanrobles.com.ph

"A government regulation is sufficiently justified if it is within the constitutional power of the government, if it furthers an importansubstantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the inciderestriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." 38

Hence, even though the government’s purposes are legitimate and substantial, they cannot be pursued by means that broadly s

fundamental personal liberties, when the end can be more narrowly achieved. 39

The freedoms of speech and of the press should all the more be upheld when what is sought to be curtailed is the disseminationnformation meant to add meaning to the equally vital right of suffrage. 40 We cannot support any ruling or order "the effect of wh

would be to nullify so vital a constitutional right as free speech." 41 When faced with borderline situations in which the freedom ocandidate or a party to speak or the freedom of the electorate to know is invoked against actions allegedly made to assure clean and felections, this Court shall lean in favor of freedom. For in the ultimate analysis, the freedom of the citizen and the State’s power to regushould not be antagonistic. There can be no free and honest elections if, in the efforts to maintain them, the freedom to speak and the rto know are unduly curtailed. 42

True, the government has a stake in protecting the fundamental right to vote by providing voting places that are safe and accessible. It the duty to secure the secrecy of the ballot and to preserve the sanctity and the integrity of the electoral process. However, in ordejustify a restriction of the people’s freedoms of speech and of the press, the state’s responsibility of ensuring orderly voting must

outweigh them.

These freedoms have additional importance, because exit polls generate important research data which may be used to study influenfactors and trends in voting behavior. An absolute prohibition would thus be unreasonably restrictive, because it effectively preventsuse of exit poll data not only for election-day projections, but also for long-term research. 43

Comelec Ban on

Exit Polling

n the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to its constitutional mandate to ensufree, orderly, honest, credible and peaceful election. While admitting that "the conduct of an exit poll and the broadcast of the res

thereof [are] an exercise of press freedom," it argues that" [p]ress freedom may be curtailed if the exercise thereof creates a clear



present danger to the community or it has a dangerous tendency." It then contends that "an exit poll has the tendency to sow confusconsidering the randomness of selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that the resof such exit poll may not be in harmony with the official count made by the Comelec is ever present. In other words, the exit poll has a cand present danger of destroying the credibility and integrity of the electoral process."cralaw virtua1aw library

Such arguments are purely speculative and clearly untenable. First, by the very nature of a survey, the interviewees or participants selected at random, so that the results will as much as possible be representative or reflective of the general sentiment or view ofcommunity or group polled. Second, the survey result is not meant to replace or be at par with the official Comelec count. It consists meof the opinion of the polling group as to who the electorate in general has probably voted for, based on the limited data gathered fpolled individuals. Finally, not at stake here are the credibility and the integrity of the elections, which are exercises that are separate

ndependent from the exit polls. The holding and the reporting of the results of exit polls cannot undermine those of the elections, sinceformer is only part of the latter. If at all, the outcome of one can only be indicative of the other.

The Comelec’s concern with the possible noncommunicative effect of exit polls — disorder and confusion in the voting centers — doesjustify a total ban on them. Undoubtedly, the assailed Comelec Resolution is too broad, since its application is without qual ification awhether the polling is disruptive or not. 44 Concededly, the Omnibus Election Code prohibits disruptive behavior around the voting cent45 There is no showing, however, that exit polls or the means to interview voters cause chaos in voting centers. Neither has any evidebeen presented proving that the presence of exit poll reporters near an election precinct tends to create disorder or confuse the voters.

Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for any purpose. The valuable information deas that could be derived from them, based on the voters’ answers to the survey questions will forever remain unknown and u nexplo

Unless the ban is restrained, candidates, researchers, social scientists and the electorate in general would be deprived of studies on mpact of current events and of election-day and other factors on voters’ choices.

n Daily Herald Co. v. Munro, 46 the US Supreme Court held that a statute, one of the purposes of which was to prevent the broadcastinearly returns, was unconstitutional because such purpose was impermissible, and the statute was neither narrowly tailored to advanstate interest nor the least restrictive alternative. Furthermore, the general interest of the State in insulating voters from outside influens insufficient to justify speech regulation. Just as curtailing election-day broadcasts and newspaper editorials for the reason that they mndirectly affect the voters’ choices is impermissible, so is regulating speech via an exit poll restriction. 47

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open any alternative channel of communicato gather the type of information obtained through exit polling. On the other hand, there are other valid and reasonable ways and meanachieve the Comelec end of avoiding or minimizing disorder and confusion that may be brought about by exit surveys.

For instance, a specific limited area for conducting exit polls may be designated. Only professional survey groups may be allowed to cond

the same. Pollsters may be kept at a reasonable distance from the voting center. They may be required to explain to voters that the lamay refuse to be interviewed, and that the interview is not part of the official balloting process. The pollsters may further be requiredwear distinctive clothing that would show they are not election officials. 48 Additionally, they may be required to undertake an informacampaign on the nature of the exercise and the results to be obtained therefrom. These measures, together with a general prohibitiondisruptive behavior, could ensure a clean, safe and orderly election.chanrobles virtuallawlibrary

For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities are randomly selected in each province;residences to be polled in such communities are also chosen at random; (3) only individuals who have already voted, as shown by ndelible ink on their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results are released to the pu

only on the day after the elections. 49 These precautions, together with the possible measures earlier stated, may be undertaken to abthe Comelec’s fear, without consequently and unjustifiably stilling the people’s voice.

With the foregoing premises, we conclude that the interest of the state in reducing disruption is outweighed by the drastic abridgmen

the constitutionally guaranteed rights of the media and the electorate. Quite the contrary, instead of disrupting elections, exit pollproperly conducted and publicized — can be vital tools for the holding of honest, orderly, peaceful and credible elections; and for elimination of election-fixing, fraud and other electoral ills.

Violation of Ballot Secrecy

The contention of public respondent that exit polls indirectly transgress the sanctity and the secrecy of the ballot is off-tangent to the rssue. Petitioner does not seek access to the ballots cast by the voters. The ballot system of voting is not at issue here.

The reason behind the principle of ballot secrecy is to avoid vote buying through voter identification. Thus, voters are prohibited fexhibiting the contents of their official ballots to other persons, from making copies thereof, or from putting distinguishing marks therso as to be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or disclosing those of disabled

lliterate voters who have been assisted. Clearly, what is forbidden is the association of voters with their respective votes, for the purp



of assuring that the votes have been cast in accordance with the instructions of a third party. This result cannot, however, be achiemerely through the voters’ verbal and confidential disclosure to a pollster of whom they have voted for.

n exit polls, the contents of the official ballot are not actually exposed. Furthermore, the revelation of whom an elector has voted for iscompulsory, but voluntary. Voters may also choose not to reveal their identities. Indeed, narrowly tailored countermeasures mayprescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of exit polls, without transgressing fundamental rights of our people.chanroblesvirtual|awlibrary

WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the Court on May 9, 1998 is made PERMANEAssailed Minute Resolution No. 98-1419 issued by the Comelec en banc on April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.

SO ORDERED.

G.R. No. 147571 May 5, 2001

SOCIAL WEATHER STATIONS, INCORPORATED and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA STANDApetitioners,vs.COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:

Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social research institution conducting surveys in var

fields, including economics, politics, demography, and social development, and thereafter processing, analyzing, and publicly reporting results thereof. On the other hand, petitioner Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of gencirculation, which features news- worthy items of information including election surveys. 1âwphi1.nêt

Petitioners brought this action for prohibition to enjoin the Commission on Elections from enforcing §5.4 of RA. No.9006 (Fair Election Awhich provides:

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates snot be published seven (7) days before an election.

The term "election surveys" is defined in §5.1 of the law as follows:

Election surveys refer to the measurement of opinions and perceptions of the voters as regards a candidate's popularity, qualificatiplatforms or a matter of public discussion in relation to the election, including voters preference for candidates or publicly discussed issduring the campaign period (hereafter referred to as "Survey").

The implement §5.4, Resolution 3636, §24(h), dated March I, 2001, of the COMELEC enjoins –

Surveys affecting national candidates shall not be published fifteen (15) days before an election and surveys affecting local candidates snot be published seven (7) days before an election.

Petitioner SWS states that it wishes to conduct an election survey throughout the period of the elections both at the national and levels and release to the media the results of such survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation

the other hand, states that it intends to publish election survey results up to the last day of the elections on May 14,2001.

Petitioners argue that the restriction on the publication of election survey results constitutes a prior restraint on the exercise of freedomspeech without any clear and present danger to justify such restraint. They claim that SWS and other pollsters conducted and publishedresults of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before the election day without causing confusamong the voters and that there is neither empirical nor historical evidence to support the conclusion that there is an immediate nevitable danger to tile voting process posed by election surveys. They point out that no similar restriction is imposed on politicians fr

explaining their opinion or on newspapers or broadcast media from writing and publishing articles concerning political issues up to the of the election. Consequently, they contend that there is no reason for ordinary voters to be denied access to the results of elecsurveys, which are relatively objective. 1âwphi1.nêt

Respondent Commission on Elections justifies the restrictions in §5.4 of R.A. No. 9006 as necessary to prevent the manipulation corruption of the electoral process by unscrupulous and erroneous surveys just before the election. It contends that (1) the prohibitiothe publication of election survey results during the period proscribed by law bears a rational connection to the objective of the law,

the prevention of the debasement of the electoral process resulting from manipulated surveys, bandwagon effect, and absence of reply





Nor can the ban on election surveys be justified on the ground that there are other countries - 78, according to the Solicitor General, wthe dissent cites 28 - which similarly impose restrictions on the publication of election surveys. At best this survey is inconclusive. It is nworthy that in the United States no restriction on the publication of election survey results exists. It cannot be argued that this is becathe United States is a mature democracy. Neither are there laws imposing an embargo on survey results, even for a limited period, in otcountries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark, Estonia, Finland, Iceland, Ireland, Latvia, MMacedonia, the Netherlands, Norway, Sweden, and Ukraine, some of which are no older nor more mature than the Philippines in politdevelopment, do not restrict the publication of election survey results.

What test should then be employed to determine the constitutional validity of §5.4? The United States Supreme Court, through CJustice Warren, held in United States v. O 'Brien:

[A] Government regulation is sufficiently justified [1] if it is within the constitutional power of the Government; [2] if it furthersmportant or substantial governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; andf the incidental restriction on alleged First Amendment freedoms [of speech, expression and press] is no greater than is essential to

furtherance of that interest.8

This is so far the most influential test for distinguishing content-based from content neutral regulations and is said to have "becocanonical in the review of such laws."9 is noteworthy that the O 'Brien test has been applied by this Court in at least two cases.10

Under this test, even if a law furthers an important or substantial governmental interest, it should be invalidated if such governmenterest is "not unrelated to the Expression of free expression." Moreover, even if the purpose is unrelated to the suppression of f

speech, the law should nevertheless be invalidated if the restriction on freedom of expression is greater than is necessary to achievegovernmental purpose in question.

Our inquiry should accordingly focus on these two considerations as applied to §5.4.

>First. Sec. 5.4 fails to meet criterion [3] of the O 'Brien test because the causal connection of expression to the asserted governmennterest makes such interest "not related to the suppression of free expression." By prohibiting the publication of election survey res

because of the possibility that such publication might undermine the integrity of the election, §5.4 actually suppresses a whole clasexpression, while allowing the expression of opinion concerning the same subject matter by newspaper columnists, radio andcommentators, armchair theorists, and other opinion takers. In effect, §5.4 shows a bias for a particular subject matter, if not viewpointreferring personal opinion to statistical results. The constitutional guarantee of freedom of expression means that "the government haspower to restrict expression because of its message, its ideas, its subject matter, or its content."11 The inhibition of speech shouldupheld only if the expression falls within one of the few unprotected categories dealt with in Chaplinsky v. New Hampshire, 12 thus:

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thoughraise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words - thwhich by their very utterance inflict injury or tend to incite an immediate breach of the peace. [S]uch utterances are no essential part ofexposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is cleoutweighed by the social interest in order and morality

Nor is there justification for the prior restraint which §5.4Iays on protected speech. Near v. Minnesota,13 it was held:

[The] protection even as to previous restraint is not absolutely unlimited. But the limitation has been recognized only in exceptional case

No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the saidates transports or the number and location of troops. On similar grounds, the primary requirements of decency may be enforced agaobscene publications. The security of the community life may be protected against incitements to acts of violence and overthrow by foof orderly government…

Thus, contrary to the claim of the Solicitor General, the prohibition imposed by §5.4 cannot be justified on the ground that it is only fimited period and is only incidental. The prohibition may be for a limited time, but the curtailment of the right of expression is dir

absolute, and substantial. It constitutes a total suppression of a category of speech and is not made less so because it is only for a periofifteen (15) days immediately before a national election and seven (7) days immediately before a local election. ..

This sufficiently distinguishes §5.4 from R.A. No. 6646, §11(b), which this Court found to be valid in National Press Club v. COMELEC,14 Osmeña v. COMELEC.15 For the ban imposed by R.A. No. 6646, §11(b) is not only authorized by a specific constitutional provision,16 bualso provided an alternative so that, as this Court pointed out in Osmeña, there was actually no ban but only a substitution of meadvertisements by the COMELEC space and COMELEC hour.

Second. Even if the governmental interest sought to be promoted is unrelated to the suppression of speech and the resulting restrictio

free expression is only incidental, §5.4 nonetheless fails to meet criterion [4] of the O 'Brien test, namely, that the restriction be not gre



than is necessary to further the governmental interest. As already stated, §5.4 aims at the prevention of last-minute pressure on voters,creation of bandwagon effect, "junking" of weak or "losing" candidates, and resort to the form of election cheating called "dagdag-bawPraiseworthy as these aims of the regulation might be, they cannot be attained at the sacrifice of the fundamental right of expresswhen such aim can be more narrowly pursued by punishing unlawful acts, rather than speech because of apprehension that such specreates the danger of such evils. Thus, under the Administrative Code of 1987,17 the COMELEC is given the power:

To stop any illegal activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false election propaganda, after notice and hearing.

This is surely a less restrictive means than the prohibition contained in §5.4. Pursuant to this power of the COMELEC, it can confiscate bo

survey results calculated to mislead voters. Candidates can have their own surveys conducted. No right of reply can be invoked by othNo principle of equality is involved. It is a free market to which each candidate brings his ideas. As for the purpose of the law to prevbandwagon effects, it is doubtful whether the Government can deal with this natural-enough tendency of some voters. Some voters wto be identified with the "winners." Some are susceptible to the herd mentality. Can these be legitimately prohibited by suppressing publication of survey results, which are a form of expression? It has been held that "[mere] legislative preferences or beliefs respecmatters of public convenience may well support regulation directed at other personal activities, but be insufficient to justify suchdiminishes the exercise of rights so vital to the maintenance of democratic institutions."18

To summarize then, we hold that §5.4 is invalid because (1) it imposes a prior restraint on the freedom of expression, (2) it is a direct atotal suppression of a category of expression even though such suppression is only for a limited period, and (3) the governmental intesought to be promoted can be achieved by means other than suppression of freedom of expression.

On the other hand, the COMELEC contends that under Art. IX-A, §7 of the Constitution, its decisions, orders, or resolution may be review

by this Court only certiorari. The flaws in this argument is that it assumes that its Resolution 3636, March 1, 2001 is a "decision, orderresolution" within the meaning of Art. IX-A, §7. Indeed, counsel for COMELEC maintain that Resolution 3636 was "rendered" by Commission. However, the Resolution does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC oadjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly states that it is promulgated to implementprovisions of R.A. No. 9006. Hence, there is no basis for COMELEC's claim that this petition for prohibition is inappropriate. Prohibition been fund appropriate for testing the constitutionality of various election laws, rules, and regulations.19

WHEREFORE, the petition for prohibited GRANTED and §5.4 of R.A. No. 9006 §24(h) of COMELEC Resolution 3636, March 1, 2001,declared unconstitutional. 1âwphi1.nêt

SO ORDERED.1âwphi1.nêt

DENNIS A. B. FUNA,Petitioner,

- versus -

THE CHAIRMAN, COMMISSION ON AUDIT, REYNALDO A. VILLAR,Respondent.

G.R. No. 192791

Present:

CORONA, C.J.,CARPIO,VELASCO, JR.,LEONARDO-DE CASTRO,BRION,PERALTA,BERSAMIN,DEL CASTILLO,ABAD,

VILLARAMA, JR.,





nature as to necessarily call for the promulgation of principles that will henceforth “guide the bench, the bar and the public” should

circumstance arise. Confusion in similar future situations would be smoothed out if the contentious issues advanced in the instant caseresolved straightaway and settled definitely. There are times when although the dispute has disappeared, as in this case, it neverthecries out to be addressed. To borrow from Javier v. Pacificador,*8+ “Justice demands that we act then, not only for the vindication ofoutraged right, though gone, but also for the guidance of and as a restraint in the future.”

Both procedural and substantive issues are raised in this proceeding. The procedural aspect comes down to the question of whether orthe following requisites for the exercise of judicial review of an executive act obtain in this petition, viz: (1) there must be an actual casjusticiable controversy before the court; (2) the question before it must be ripe for adjudication; (3) t he person challenging the act musa proper party; and (4) the issue of constitutionality must be raised at the earliest opportunity and must be the very litis mota of

case.[9]

To Villar, all the requisites have not been met, it being alleged in particular that petitioner, suing as a taxpayer and citizen, lacks necessary standing to challenge his appointment.[10] On the other hand, the Office of the Solicitor General (OSG), while recognizingvalidity of Villar’s appointment for the period ending February 11, 2011, has expressed the view that petitioner should have had filepetition for declaratory relief or quo warranto under Rule 63 or Rule 66, respectively, of the Rules of Court instead of certiorari under R65.

Villar’s posture on the absence of some of the mandatory requisites for the exercise by the Court of its power of judicial review must fAs a general rule, a petitioner must have the necessary personality or standing (locus standi) before a court will recognize the isspresented. In Integrated Bar of the Philippines v. Zamora, We defined locus standi as:

x x x a personal and substantial interest in the case such that the party has sustained or will sustain a direct injury as a result of

governmental act that is being challenged. The term “interest” means a material interest, an interest in issue affected by the decreedistinguished from mere interest in the question involved, or a mere incidental interest. The gist of the question of standing is whethparty alleges “such personal stake in the outcome of the controversy as to assure the concrete adverseness which sharpens

presentation of issues upon which the court depends for illumination of difficult constitutional questions.”*11+

To have legal standing, therefore, a suitor must show that he has sustained or will sustain a “direct injury” as a result of a governmaction, or have a “material interest” in the issue affected by the challenged official act.*12+ However, the Court has time and again aciberally on the locus standi requirements and has accorded certain individuals, not otherwise directly injured, or with material inte

affected, by a Government act, standing to sue provided a constitutional issue of critical significance is at stake.[13] The rule on lostandi is after all a mere procedural technicality in relation to which the Court, in a catena of cases involving a subject of transcendemport, has waived, or relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to su

the public interest, albeit they may not have been personally injured by the operation of a law or any other government act.[14] In Da

the Court laid out the bare minimum norm before the so-called “non-traditional suitors” may be extended standing to sue, thusly:

1.) For taxpayers, there must be a claim of illegal disbursement of public funds or that the tax measure is unconstitutional;2.) For voters, there must be a showing of obvious interest in the validity of the election law in question;3.) For concerned citizens, there must be a showing that the issues raised are of transcendental importance which must be settled eand4.) For legislators, there must be a claim that the official action complained of infringes their prerogatives as legislators.

This case before Us is of transcendental importance, since it obviously has “far-reaching implications,” and there is a need to promulg

rules that will guide the bench, bar, and the public in future analogous cases. We, thus, assume a liberal stance and allow petitionenstitute the instant petition.

Anent the aforestated posture of the OSG, there is no serious disagreement as to the propriety of the availment of certiorari as a med

to inquire on whether the assailed appointment of respondent Villar as COA Chairman infringed the constitution or was infected with gabuse of discretion. For under the expanded concept of judicial review under the 1987 Constitution, the corrective hand of certiorari be invoked not only “to settle actual controversies involving rights which are legally demandable and enforceable,” but also “to determ

whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any brancnstrumentality of the government.”*15+ “Grave abuse of discretion” denotes:

such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is exercin an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amoun t to an eva

of positive duty or to a virtual refusal to perform the duty enjoined or to act in contemplation of law.[16]

We find the remedy of certiorari applicable to the instant case in view of the allegation that then President Macapagal-Arroyo exercised

appointing power in a manner constituting grave abuse of discretion.



This brings Us to the pivotal substantive issue of whether or not Villar’s appointment as COA Chairman, while sitting in that body and a

having served for four (4) years of his seven (7) year term as COA commissioner, is valid in light of the term limitations imposed under, the circumscribing concepts tucked in, Sec. 1 (2), Art. IX(D) of the Constitution, which reads:

(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent of the Commission on Appointmfor a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, commissioner for five years, and the other commissioner for three years, without reappointment. Appointment to any vacancy shall be for the unexpired portion of the term of the predecessor. In no case shall any member be appointed or designated in a temporary or accapacity. (Emphasis added.)[17]

And if valid, for how long can he serve?

At once clear from a perusal of the aforequoted provision are the defined restricting features in the matter of the composition of COA the appointment of its members (commissioners and chairman) designed to safeguard the independence and impartiality of commission as a body and that of its individual members.[18] These are, first, the rotational plan or the staggering term in the commissmembership, such that the appointment of commission members subsequent to the original set appointed after the effectivity of the 1Constitution shall occur every two years; second, the maximum but a fixed term-limit of seven (7) years for all commission members whappointments came about by reason of the expiration of term save the aforementioned first set of appointees and those made to filvacancies resulting from certain causes; third, the prohibition against reappointment of commission members who served the full termseven years or of members first appointed under the Constitution who served their respective terms of office; fourth, the limitation of term of a member to the unexpired portion of the term of the predecessor; and fifth, the proscription against temporary appointmen

designation.

To elucidate on the mechanics of and the adverted limitations on the matter of COA-member appointments with fixed but staggeterms of office, the Court lays down the following postulates deducible from pertinent constitutional provisions, as construed by the Cou

1. The terms of office and appointments of the first set of commissioners, or the seven, five and three-year termers referred to in 1(2), Art. IX(D) of the Constitution, had already expired. Hence, their respective terms of office find relevancy for the most part onlunderstanding the operation of the rotational plan. In Gaminde v. Commission on Audit,[19] the Court described how the smofunctioning of the rotational system contemplated in said and like provisions covering the two other independent commissions is achiethru the staggering of terms:

x x x [T]he terms of the first Chairmen and Commissioners of the Constitutional Commissions under the 1987 Constitution must start o

common date [February 02, 1987, when the 1987 Constitution was ratified] irrespective of the variations in the dates of appointments qualifications of the appointees in order that the expiration of the first terms of seven, five and three years should lead to the regurecurrence of the two-year interval between the expiration of the terms.

x x x In case of a belated appointment, the interval between the start of the terms and the actual appointment shall be counted againstappointee.[20] (Italization in the original; emphasis added.)

Early on, in Republic v. Imperial,*21+ the Court wrote of two conditions, “both indispensable to *the+ workability” of the ro tational pThese conditions may be described as follows: (a) that the terms of the first batch of commissioners should start on a common date; andthat any vacancy due to death, resignation or disability before the expiration of the term should be filled only for the unexpired balancthe term. Otherwise, Imperial continued, “the regularity of the intervals between appointments would be destroyed.” There appears to

near unanimity as to the purpose/s of the rotational system, as originally conceived, i.e., to place in the commission a new appointee fixed interval (every two years presently), thus preventing a four-year administration appointing more than one permanent and reg

commissioner,*22+ or to borrow from Commissioner Monsod of the 1986 CONCOM, “to prevent one person (the President of Philippines) from dominating the commissions.”*23+ It has been declared too that the rotational plan ensures continuity in, andndicated earlier, secure the independence of, the commissions as a body.[24]

2. An appointment to any vacancy in COA, which arose from an expiration of a term, after the first chairman and commissioappointed under the 1987 Constitution have bowed out, shall, by express constitutional fiat, be for a term of seven (7) years, save whenappointment is to fill up a vacancy for the corresponding unserved term of an outgoing member. In that case, the appointment shall onlfor the unexpired portion of the departing commissioner’s term of office. There can only be an unexpired portion when, as a d irect resuhis demise, disability, resignation or impeachment, as the case may be, a sitting member is unable to complete his term of office.[25repeat, should the vacancy arise out of the expiration of the term of the incumbent, then there is technically no unexpired portion to spof. The vacancy is for a new and complete seven-year term and, ergo, the appointment thereto shall in all instances be for a maximseven (7) years.



3. Sec. 1(2), Art. IX(D) of the 1987 Constitution prohibits the “reappointment” of a member of COA after his appointment for seven

years. Writing for the Court in Nacionalista Party v. De Vera,[26] a case involving the promotion of then COMELEC Commissioner De Verthe position of chairman, then Chief Justice Manuel Moran c alled attention to the fact that the prohibition against “reappointment” co

as a continuation of the requirement that the commissioners ––referring to members of the COMELEC under the 1935 Constitution ––shold office for a term of nine (9) years. This sentence formulation imports, notes Chief Justice Moran, that reappointment is not an absoprohibition.

4. The adverted system of regular rotation or the staggering of appointments and terms in the membership for all three constituticommissions, namely the COA, Commission on Elections (COMELEC) and Civil Service Commission (CSC) found in the 1987 Constitution patterned after the amended 1935 Constitution for the appointment of the members of COMELEC[27] with this difference: the 1

version entailed a regular interval of vacancy every three (3) years, instead of the present two (2) years and there was no express provison appointment to any vacancy being limited to the unexpired portion of the his predecessor’s term. The model 1935 provision reads:

Section 1. There shall be an independent Commission on Elections composed of a Chairman and two other members to be appointed byPresident with the consent of the Commission on Appointments, who shall hold office for a term of nine years and may not be reappoinOf the Members of the Commission first appointed, one shall hold office for nine years, another for six years and the third for three yeax x

Petitioner now asseverates the view that Sec. 1(2), Art. IX(D) of the 1987 Constitution proscribes reappointment of any kind within commission, the point being that a second appointment, be it for the same position (commissioner to another position of commi ssioneupgraded position (commissioner to chairperson) is a prohibited reappointment and is a nullity ab initio. Attention is drawn in this regto the Court’s disposition in Matibag v. Benipayo.*28+

Villar’s promotional appointment, so it is argued, is void from the start, constituting as it did a reappointment enjoined by the Constitutsince it actually needed another appointment to a different office and requiring another confirmation by the Commission on Appointme

Central to the adjudication of the instant petition is the correct meaning to be given to Sec. 1(2), Article IX(D) of the Constitution on the against reappointment in relation to the appointment issued to respondent Villar to the position of COA Chairman.

Without question, the parties have presented two (2) contrasting and conflicting positions. Petitioner contends that Villar’s appointme

proscribed by the constitutional ban on reappointment under the aforecited constitutional provision. On the other hand, respondent Vnitially asserted that his appointment as COA Chairman is valid up to February 2, 2015 pursuant to the same provision.

The Court finds petitioner’s position bereft of merit. The flaw lies in regarding the word “reappointment” as, in context, embracing any

all species of appointment.

The rule is that if a statute or constitutional provision is clear, plain and free from ambiguity, it must be given its literal meaning an d appwithout attempted interpretation.[29] This is known as the plain meaning rule enunciated by the maxim verba legis non est recedendor from the words of a statute there should be no departure.[30]The primary source whence to ascertain constitutional intent or purpose is the language of the provision itself.[31] If possible, the wordthe Constitution must be given their ordinary meaning, save where technical terms are employed. J.M. Tuason & Co., Inc. v. Land TenAdministration illustrates the verbal legis rule in this wise:

We look to the language of the document itself in our search for its meaning. We do not of course stop there, but that is where we bet is to be assumed that the words in which constitutional provisions are couched express the objective sought to be attained. They ar

be given their ordinary meaning except where technical terms are employed in which case the significance thus attached to them prev

As the Constitution is not primarily a lawyer’s document, it being essential for the rule of law to obtain that it should ever be present inpeople’s consciousness, its language as much as possible should be understood in the sense they have in common use. What it according to the text of the provision to be construed compels acceptance and negates the power of the courts to alter it, based on postulate that the framers and the people mean what they say. Thus there are cases where the need for construction is reduced minimum.[32] (Emphasis supplied.)

Let us dissect and examine closely the provision in question:

(2) The Chairman and Commissioners [on Audit] shall be appointed by the President with the consent of the Commission on Appointmfor a term of seven years without reappointment. Of those first appointed, the Chairman shall hold office for seven years, commissioner for five years, and the other commissioner for three years, without reappointment. Appointment to any vacancy shaonly for the unexpired portion of the term of the predecessor. x x x (Emphasis added.)



The first sentence is unequivocal enough. The COA Chairman shall be appointed by the President for a term of seven years, and ihas served the full term, then he can no longer be reappointed or extended another appointment. In the same vein, a Commissioner wwas appointed for a term of seven years who likewise served the full term is barred from being reappointed. In short, once the Chairmor Commissioner shall have served the full term of seven years, then he can no longer be reappointed to either the position of ChairmaCommissioner. The obvious intent of the framers is to prevent the president from “dominating” the Commission by allowing him

appoint an additional or two more commissioners.

The same purpose obtains in the second sentence of Sec. 1(2). The Constitutional Convention barred reappointment to be extento commissioner-members first appointed under the 1987 Constitution to prevent the President from controlling the commission. Tthe first Chairman appointed under the 1987 Constitution who served the full term of seven years can no longer be extende

reappointment. Neither can the Commissioners first appointed for the terms of five years and three years be eligible for reappointmThis is the plain meaning attached to the second sentence of Sec. 1(2), Article IX(D).

On the other hand, the provision, on its face, does not prohibit a promotional appointment from commissioner to chairman as l onthe commissioner has not served the full term of seven years, further qualified by the third sentence of Sec. 1(2 ), Article IX (D) that “

appointment to any vacancy shall be only for the unexpired portion of the term of the predecessor.” In addition, such promotiappointment to the position of Chairman must conform to the rotational plan or the staggering of terms in the commission memberssuch that the aggregate of the service of the Commissioner in said position and the term to which he will be appointed to the positioChairman must not exceed seven years so as not to disrupt the rotational system in the commission prescribed by Sec. 1(2), Art. IX(D).

In conclusion, there is nothing in Sec. 1(2), Article IX(D) that explicitly precludes a promotional appointment from CommissioneChairman, provided it is made under the aforestated circumstances or conditions.

It may be argued that there is doubt or ambiguity on whether Sec. 1(2), Art. IX(D), as couched, allows a promotional appointmfrom Commissioner to Chairman. Even if We concede the existence of an ambiguity, the outcome will remain the same. J.M. Tuason & nc.[33] teaches that in case of doubt as to the import and react of a constitutional provision, resort should be made to extraneous aid

construction, such as debates and proceedings of the Constitutional Convention, to shed light on and ascertain the intent of the framerthe purpose of the provision being construed.

The understanding of the Convention as to what was meant by the terms of the constitutional provision which was the subject of deliberation goes a long way toward explaining the understanding of the people when they ratified it. The Court applied this principCivil Liberties Union v. Executive Secretary:

A foolproof yardstick in constitutional construction is the intention underlying the provision under consideration. Thus, it has bheld that the Court in construing a Constitution should bear in mind the object sought to be accomplished by its adoption, and the evil

any, sought to be prevented or remedied. A doubtful provision will be examined in the light of the history of the times, and the condiand circumstances under which the Constitution was framed. The object is to ascertain the reason which induced the framers of Constitution to enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole asmake the words consonant to that reason and calculated to effect that purpose.[34] (Emphasis added.)

And again in Nitafan v. Commissioner on Internal Revenue:

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

Much weight and due respect must be accorded to the intent of the framers of the Constitution in interpreting its provisions.Far from prohibiting reappointment of any kind, including a situation where a commissioner is upgraded to the position of chairman, 1987 Constitution in fact unequivocally allows promotional appointment, but subject to defined parameters. The ensuing exchanges duthe deliberations of the 1986 Constitutional Commission (CONCOM) on a draft proposal of what would eventually be Sec. 1(2), Art. IX(Dthe present Constitution amply support the thesis that a promotional appointment is allowed provided no one may be in the COA foaggregate threshold period of 7 years:

MS. AQUINO: In the same paragraph, I would propose an amendment x x x. Between x x x the sentence which begins with “In no ca

nsert THE APPOINTEE SHALL IN NO CASE SERVE AN AGGREGATE PERIOD OF MORE THAN SEVEN YEARS. I was thinking that this mapproximate the situation wherein a commissioner is first appointed as chairman. I am willing to withdraw that amendment if thererepresentation on the part of the Committee that there is an implicit intention to prohibit a term that in the aggregate will exceed mthan seven years. If that is the intention, I am willing to withdraw my amendment.



MR. MONSOD: If the [Gentlewoman] will read the whole Article, she will notice that there is no reappointment of any kind and, therefas a whole there is no way somebody can serve for more than seven years. The purpose of the last sentence is to make sure that this dnot happen by including in the appointment both temporary and acting capacities.

MS. AQUINO. Yes. Reappointment is fine; that is accounted for. But I was thinking of a situation wherein a commissioner is upgraded tposition of chairman. But if this provision is intended to cover that kind of situation, then I am willing to withdraw my amendment.

MR. MONSOD. It is covered.

MR. FOZ. There is a provision on line 29 precisely to cover that situation. It states: “Appointment to any vacancy shall be o nly for

unexpired portion of the predecessor.” In other words, if there is upgrading of position from commissioner to chairman, the appointeeserve only the unexpired portion of the term of the predecessor.

MS. AQUINO: But we have to be very specific x x x because it might shorten the term because he serves only the unexpired portion of term of the predecessor.

MR. FOZ: He takes it at his own risk. He knows that he will only have to serve the unexpired portion of the term of the predeces(Emphasis added.)[36]

The phrase “upgrading of position” found in the underscored portion unmistakably shows that Sec. 1(2), Art. IX(D) of the 1987 Constitutfor all its caveat against reappointment, does not per se preclude, in any and all cases, the promotional appointment or upgrade commissioner to chairman, subject to this proviso: the appointee’s tenure i n office does not exceed 7 years in all. Indeed, sappointment does not contextually come within the restricting phrase “without reappointment” twice written in that section. D elegate

even cautioned, as a matter of fact, that a sitting commissioner accepting a promotional appointment to fill up an unexpired portpertaining to the higher office does so at the risk of shortening his original term. To illustrate the Foz’s concern: assume that CaragueCOA for reasons other than the expiration of his threshold 7-year term and Villar accepted an appointment to fill up the vacancy. In tsituation, the latter can only stay at the COA and served the unexpired portion of Carague’s unexpired term as departing COA Chairmeven if, in the process, his (Villar’s) own 7-year term as COA commissioner has not yet come to an end. In this illustration, the inviolaregularity of the intervals between appointments in the COA is preserved.

Moreover, jurisprudence tells us that the word “reappointment” means a second appointment to one and the same office.[37] As JusArsenio Dizon (Justice Dizon) aptly observed in his dissent in Visarra v. Miraflor,[38] the constitutional prohibition against reappointment of a commissioner refers to his second appointment to the same office after holding it for nine years.[39] As Justice Diobserved, “*T+he occupant of an office obviously needs no such second appointment unless, for some valid cause, such as the e xpiratiohis term or resignation, he had ceased to be the legal occupant thereof.” *40+ The inevitable implication of Justice Dizon’s cog

observation is that a promotion from commissioner to chairman, albeit entailing a second appointment, involves a different office ahence, not, in the strict legal viewpoint, a reappointment. Stated a bit differently, “reappointment” refers to a movement to one and

same office. Necessarily, a movement to a different position within the commission (from Commissioner to Chairman) would constituteappointment, or a second appointment, to be precise, but not reappointment.

A similar opinion was expressed in the same Visarra case by the concurring Justice Angelo Bautista, although he expressly alluded promotional appointment as not being a prohibited appointment under Art. X of the 1935 Constitution.

Petitioner’s invocation of Matibag as additional argument to contest the constitutionality of Villar’s elevation to the COA c hairmanshnapposite. In Matibag, then President Macapagal-Arroyo appointed, ad interim, Alfredo Benipayo as COMELEC Chairman and Resurrec

Borra and Florentino Tuason as Commissioners, each for a term of office of seven (7) years. All three immediately took their oath of, aassumed, office. These appointments were twice renewed because the Commission on Appointments failed to act on the first twonterim appointments. Via a petition for prohibition, some disgruntled COMELEC officials assail as infirm the appointments of Benipayo

al.

Matibag lists (4) four situations where the prohibition on reappointment would arise, or to be specific, where the proviso “*t+he Chairm

and the Commissioners shall be appointed x x x for a term of seven years without reappointment” shall apply. Justice Antonio T. Cadeclares in his dissent that Villar’s appointment falls under a combination of two of the four situations. Conceding for the nonce the correctness of the premises depicted in the situations referred to in Matibag, that case is of doubapplicability to the instant petition. Not only is it cast against a different milieu, but the lis mota of the case, as expressly declared inmain opinion, “is the very constitutional issue raised by petitioner.”*41+ And what is/are this/these issue/s? Only two defined issueMatibag are relevant, viz: (1) the nature of an ad interim appointment and subsumed thereto the effect of a by-passed ad inteappointment; and (2) the constitutionality of renewals of ad interim appointments. The opinion defined these issues in the following w“Petitioner *Matibag+ filed the instant petition questioning the appointment and the right to remain in office of Benipayo, Borra and Tuaas Chairman and Commissioners of the COMELEC, respectively. Petitioner claims that the ad interim appointments of Benipayo, et



violate the constitutional provisions on the independence of COMELEC, as well as on the prohibitions on temporary appointments reappointments of its Chairman and members.” As may distinctly be noted, an upgrade or promotion was not in issue in Matibag.

We shall briefly address the four adverted situations outlined in Matibag, in which, as there urged, the uniform proviso onreappointment ––after a member of any of the three constitutional commissions is appointed for a term of seven (7) years ––shall apMatibag made the following formulation:

The first situation is where an ad interim appointee after confirmation by the Commission on Appointments serves his full 7-year teSuch person cannot be reappointed whether as a member or as chairman because he will then be actually serving more than sevenyears.

The second situation is where the appointee, after confirmation, serves part of his term and then resigns before his seven-year termoffice ends. Such person cannot be reappointed whether as a member or as chair to a vacancy arising from retirement becausreappointment will result in the appointee serving more than seven years.

The third situation is where the appointee is confirmed to serve the unexpired portion of someone who died or resigned, and appointee completes the unexpired term. Such person cannot be reappointed whether as a member or as chair to a vacancy arising fretirement because a reappointment will result in the appointee also serving more than seven (7) years.

The fourth situation is where the appointee has previously served a term of less than seven (7) years, and a vacancy arises from deathresignation. Even if it will not result in his serving more than seven years, a reappointment of such person to serve an unexpired term is prohibited because his situation will be similar to those appointed under the second sentence of Sec. 1(20), Art. IX-C of the Constitu[referring to the first set of appointees (the 5 and 3 year termers) whose term of office are less than 7 years but are barred from be

reappointed under any situation+.”*42+ (Words in brackets and emphasis supplied.)

The situations just described constitute an obiter dictum, hence without the force of adjudication, for the corresponding formulation offour situations was not in any way necessary to resolve any of the determinative issues specifically defined in Matibag. An opinion entiunnecessary for the decision of the case or one expressed upon a point not necessarily involved in the determination of the case isobiter.[43]

There can be no serious objection to the scenarios depicted in the first, second and third situations, both hewing with the proposition no one can stay in any of the three independent commissions for an aggregate period of more than seven (7) years. The fourth situathowever, does not commend itself for concurrence inasmuch as it is basically predicated on the postulate that reappointment, as earherein defined, of any kind is prohibited under any and all circumstances. To reiterate, the word “reappointment” means a sec

appointment to one and the same office; and Sec. 1(2), Art. IX(D) of the 1987 Constitution and similar provisions do not perempt

prohibit the promotional appointment of a commissioner to chairman, provided the new appointee’s tenure in both capacities do esexceed seven (7) years in all. The statements in Matibag enunciating the ban on reappointment in the aforecited fourth situation, perfomust be abandoned, for, indeed, a promotional appointment from the position of Commissioner to that of Chairman is constitutionpermissible and not barred by Sec. 1(2), Art. IX (D) of the Constitution.

One of the aims behind the prohibition on reappointment, petitioner urges, is to ensure and preserve the independence of COA andmembers,[44] citing what the dissenting Justice J.B.L Reyes wrote in Visarra, that once appointed and confirmed, the commissioners shbe free to act as their conscience demands, without fear of retaliation or hope or reward. Pursued to its logical conclusion, petition

thesis is that a COA member may no longer act with independence if he or she can be rewarded with a promotion or appointment, for the or she will do the bidding of the appointing authority in the hope of being promoted or reappointed.

The unstated reason behind Justice J.B.L. Reyes’ counsel is that independence is really a matter of choice. Without taking an ything afrom the gem imparted by the eminent jurist, what Chief Justice Moran said on the subject of independence is just as logically sound

perhaps even more compelling, as follows:

A Commissioner, hopeful of reappointment may strive to do good. Whereas, without that hope or other hope of material reward,enthusiasm may decline as the end of his term approaches and he may even lean to abuses if there is no higher restrain in his mocharacter. Moral character is no doubt the most effective safeguard of independence. With moral integrity, a commissioner wilndependent with or without the possibility of reappointment.[45]

The Court is likewise unable to sustain Villar’s proposition that his promotional appointment as COA Chairman gave him a com pletely f7-year term ––from February 2008 to February 2015 ––given his four (4)-year tenure as COA commissioner devalues all the pronouncements made by this Court, starting in De Vera, then Imperial, Visarra, and finally Matibag. While there had been divergencopinion as to the import of the word “reappointment,” there has been unanimity on the dictum that in no case can one be a COA memeither as chairman or commissioner, or a mix of both positions, for an aggregate term of more than 7 years. A contrary view would allo

circumvention of the aggregate 7-year service limitation and would be constitutionally offensive as it would wreak havoc to the spirit of





n the extreme hypothetical situation that Villar vacates the position of chairman for causes other than the expiration of the original termCarague, the President can only appoint the successor of Villar for the unexpired portion of the Carague term in line with Sec. 1(2), AX(D) of the Constitution. Upon the expiration of the original 7-year term of Carague, the President can appoint a new chairman for a te

of seven (7) full years.

n his separate dissent, my esteemed colleague, Mr. Justice Mendoza, takes strong exception to the view that the promotional appointmof a sitting commissioner is plausible only when he is appointed to the position of chairman for the unexpired portion of the term of official who leaves the office by reason of any the following reasons: death, disability, resignation or impeachment, not when the vacaarises out as a result of the expiration of the 7-year term of the past chairman. There is nothing in the Constitution, so Justice Mend

counters, that restricts the promotion of an incumbent commissioner to the chairmanship only in instances where the tenure ofpredecessor was cut short by any of the four events referred to. As earlier explained, the majority view springs from the interplay offollowing premises: The explicit command of the Constitution is that the “Chairman and the Commissioners shall be appointed byPresident x x x for a term of seven years [and] appointment to any vacancy shall be only for the unexpired portion of the term of predecessor.” To repeat, the President has two and only two options on term appointments. Either he extends an appointment f or a fuyear term when the vacancy results from the expiration of term, or for a shorter period corresponding to the unexpired term of predecessor when the vacancy occurs by reason of death, physical disability, resignation or impeachment. If the vacancy calls for aseven-year appointment, the Chief Executive is barred from extending a promotional appointment for less than seven years. Else,President can trifle with terms of office fixed by the Constitution.

Justice Mendoza likewise invites attention to an instance in history when a commissioner had been promoted chairman after the expiraof the term of his predecessor, referring specifically to the appointment of then COMELEC Commissioner Gaudencio Garcia to succeed JP. Carag after the expiration of the latter’s term in 1959 as COMELEC chai rman. Such appointment to the position of chairman is

constitutionally permissible under the 1987 Constitution because of the policy and intent of its framers that a COA member who has serhis full term of seven (7) years or even for a shorter period can no longer be extended another appointment to the position of chairmana full term of seven (7) years. As revealed in the deliberations of the Constitutional Commission that crafted the 1987 Constitutiomember of COA who also served as a commissioner for less than seven (7) years in said position cannot be appointed to the positiochairman for a full term of seven (7) years since the aggregate will exceed seven (7) years. Thus, the adverted Garcia appointment in 1made under the 1935 Constitution cannot be used as a precedent to an appointment of such nature under the 1987 Constitution. dissent further notes that the upgrading remained uncontested. In this regard, suffice it to state that the promotion in question was eiegal or it was not. If it were not, no amount of repetitive practices would clear it of invalidating taint.

Lastly, Villar’s appointment as chairman ending February 2, 2011 which Justice Mendoza considers as valid is likewise unconst itutional, will destroy the rationale and policy behind the rotational system or the staggering of appointments and terms in COA as prescribed inConstitution. It disturbs in a way the staggered rotational system of appointment under Sec. 1(2), Art. IX(D) of the 1987 Constitut

Consider: If Villar’s term as COA chairman up to February 2, 2011 is viewed as valid and constitutional as espoused by my esteecolleague, then two vacancies have simultaneously occurred and two (2) COA members going out of office at once, opening positionstwo (2) appointables on that date as Commissioner San Buenaventura’s term also expired on that day. This is precisely one of the mischthe staggering of terms and the regular intervals appointments seek to address. Note that San Buenaventura was specifically appointedsucceed Villar as commissioner, meaning she merely occupied the position vacated by her predecessor whose term as such commissioexpired on February 2, 2011. The result is what the framers of the Constitution doubtless sought to avoid, a sitting President with a 6-term of office, like President Benigno C. Aquino III, appointing all or at least two (2) members of the three-man Commission during his teHe appointed Ma. Gracia Pulido-Tan as Chairman for the term ending February 2, 2015 upon the relinquishment of the post by respondVillar, and Heidi Mendoza was appointed Commissioner for a 7-year term ending February 2, 2018 to replace San Buenaventura. If JusMendoza’s version is adopted, then situations like the one which obtains in the Commission will definitely be replicated in gross breacthe Constitution and in clear contravention of the intent of its framers. Presidents in the future can easily control the Commission deprit of its independence and impartiality.

To sum up, the Court restates its ruling on Sec. 1(2), Art. IX(D) of the Constitution, viz:

1. The appointment of members of any of the three constitutional commissions, after the expiration of the uneven terms of oof the first set of commissioners, shall always be for a fixed term of seven (7) years; an appointment for a lesser period is void unconstitutional.

The appointing authority cannot validly shorten the full term of seven (7) years in case of the expiration of the term as this will result indistortion of the rotational system prescribed by the Constitution.

2. Appointments to vacancies resulting from certain causes (death, resignation, disability or impeachment) shall only be forunexpired portion of the term of the predecessor, but such appointments cannot be less than the unexpired portion as this will likewdisrupt the staggering of terms laid down under Sec. 1(2), Art. IX(D).



3. Members of the Commission, e.g. COA, COMELEC or CSC, who were appointed for a full term of seven years and who servedentire period, are barred from reappointment to any position in the Commission. Corollarily, the first appointees in the Commission unthe Constitution are also covered by the prohibition against reappointment.

4. A commissioner who resigns after serving in the Commission for less than seven years is eligible for an appointment toposition of Chairman for the unexpired portion of the term of the departing chairman. Such appointment is not covered by the banreappointment, provided that the aggregate period of the length of service as commissioner and the unexpired period of the term of predecessor will not exceed seven (7) years and provided further that the vacancy in the position of Chairman resulted from deresignation, disability or removal by impeachment. The Court clarifies that “reappointment” found in Sec. 1(2), Art. IX(D) meanmovement to one and the same office (Commissioner to Commissioner or Chairman to Chairman). On the other hand, an appointm

nvolving a movement to a different position or office (Commissioner to Chairman) would constitute a new appointment and, hence, nothe strict legal sense, a reappointment barred under the Constitution.

5. Any member of the Commission cannot be appointed or designated in a temporary or acting capacity.

WHEREFORE the petition is PARTLY GRANTED. The appointment of then Commissioner Reynaldo A. Villar to the position of Chairman ofCommission on Audit to replace Guillermo N. Carague, whose term of office as such chairman has expired, is hereby declaUNCONSTITUTIONAL for violation of Sec. 1(2), Art. IX(D) of the Constitution.

SO ORDERED.

EN BANC

[G.R. No. 91429. July 13, 1990.]

SALVADOR M. MISON, in his capacity as commissioner of Customs, Petitioner, v. COMMISSION ON AUDIT, CHAN CHIU, and CHEUNRespondents.

Juan T. David counsel and attorney-in-fact for the owner of the M/V Hyojin Maru.

D E C I S I O N

NARVASA, J.:

n Customs Case No. 813, the Commissioner of Customs rendered a decision on August 11, 1969, declaring illegal the seizure by elementhe Philippine Navy of the M/V "Hyojin Maru" a vessel of Japanese registry, and ordered the release of the vessel and its cargo to claimants, Chan Chiu On and Cheung I. 1 Return of the cargo as thus ordered was effected pursuant to a directive of the SecretaryFinance dated February 5, 1970. 2 Release of the vessel, however, was never effected; it sank while yet in the custody of the BureauCustoms, and requests by the Bureau to the Philippine Navy and the CADA to refloat or salvage the ship could not be complied with for of funds. 3

Chan Chiu On and Cheung I then filed a claim with the Commission of Audit for the payment of the value of the vessel. 4 Acting ther"(b)y authority of the Acting Chairman," Mr. Rogelio B. Espiritu, Manager, Technical Service Office of the COA, denied the claim for reasons set forth in his registered letter to the claimant’s lawyer dated November 3, 1977 — captioned "Decision No. 77-142." 5 Anotetter, dated December 9, 1977, this time signed by Acting COA Chairman Francisco S. Tantuico, was also sent t o claimants’ counsel, A

Juan David, enclosing "a copy of Decision No. 77-142 of this Commission, contained in a letter dated November 3, 1977, which is sexplanatory." 6

Atty. David moved for reconsideration by letter dated February 6, 1978. Acting COA Chairman Tantuico denied the motion, in his own ledated April 17, 1978 on the ground that it had been filed beyond the reglementary period of 30 days from the date of receipt of a copthe subject Decision which, in consequence, had "already become final and executory." 7 In a letter dated May 10, 1978, Mr. David repthat said Decision No. 77-142 — rendered only by the Manager, Technical Service Office of the COA, and "not (by) the Acting Chairmmuch less xx the Commission on Audit" — was void because the matter could validly be acted upon only by "the Commission on Audit dconstituted, by the appointment and qualification of its Chairman and two Commissioners," "as specifically provided by Section 2, ArtXII-D of the (1973) Constitution." 8 Commissioner Tantuico wrote back on August 24, 1978 informing Mr. David that "this Commission fino cogent reason that would justify a reversal of its stand on the matter." 9



Again Atty. David moved for reconsideration, by letter dated April 5, 1979, reiterating the view that Acting Chairman Tantuico lacconstitutional authority to act on the claim on its merits, and requesting that "the same be submitted for resolution by the CommissionAudit, after the appointment of the two (2) commissioners thereof, as required by Section 2, Article XII-D of the Constitution." 10 In anocommunication dated April 20, 1981, Mr. David reiterated his request that his application for reconsideration be acted on, considering t"a Commissioner has (already) been appointed as member of said Commission." It does not appear that either letter was acted on. 11

On November 17, 1986, the Commission on Audit having been fully constituted with the appointment of the Chairman and twomembers, Mr. David wrote still another letter to it, 12 drawing attention once again to his clients’ claim for payment of the "nom

depreciated value . . . (of their vessel) in the sum of US$50,000.00, plus the amount corresponding to legal interest." An acceptalternative based on "established practice," according to David, would be the conveyance to his clients by the Bureau of Custom

"forfeited merchandise, the value of which shall correspond to the nominal depreciated value of said vessel, plus legal interest . . ."cravirtua1aw library

n a 4th Indorsement dated June 22, 1987 addressed "to the Auditor, Bureau of Customs," Chairman Eufemio C. Domingo, acting "FOR COMMISSION," reconsidered Decision No. 77-142 of Acting Commissioner of Audit Tantuico, supra. He declared that the vessel sank wn illegal custody of the Bureau of Customs, which "should have pre-eminently taken adequate measures to preserve" it but did not; he

he declared that "this Commission will interpose no objection" to the instant claim, subject to the usual auditing and accounrequirements." 13

Petitioner Mison sought clarification of "the legal implication of the 4th Indorsement dated June 22, 1987," in two (2) letters daNovember 8, 1988 and November 16, 1988. 14 The response was a letter dated May 19, 1989, entitled "COA Decision No. 992," signed"the full complement of three (3) members of the Commission on Audit." 15 Said COA Decision No. 992 pointed out that the eardecision, No. 77-142, was "open to question and cannot be recognized by the present Commission" because signed merely by the t

Manager of the Technical Service Office," who evidently "was not acting for the Commission but only for the then Acting Chairmantherefore held that the 4th Indorsement dated June 22, 1987 should be "deemed for all legal intents and purposes as the final decisionthe matter . . ." This letter — Decision No. 992 — was received by the Bureau of Customs on June 22, 1989. 16

The petitioner filed a motion for reconsideration on August 30, 1989.17 The motion was denied by letter dated October 20, 19denominated "COA Decision No. 1053," also signed by the Chairman and the two (2) Members of the Commission, notice of which wreceived by the petitioner on December 4, 1989. 18

Petitioner seasonably filed with this Court a petition for certiorari to nullify said COA Decisions No. 992 and 1053, pursuant to SectioArticle IX of the 1987 Constitution. 19

1. The first point that the petitioner would make is that COA Decision No. 77-142, although signed only by the Manager, Techn

Service Office of the COA, was ratified or made valid because it "was adopted in toto as a decision of the COA in the letters dated Decem9, 1977, April 17, 1978, and August 24, 1978 of then COA Chairman Francisco T. Tantuico, Jr. to Atty. Juan T. David." The point cannoconceded. chanrobles law library

n the first place the "Espiritu decision" was void ab initio. As manager of the COA Technical Service Office, Mr. Espiritu obviously hadpower whatever to render and promulgate a decision of or for the Commission. Indeed, even the Chairman, alone, had not that powerclearly set out in the Constitution then in force, the power was lodged in the Commission on Audit, "composed of a Chairman and tCommissioners." 20 It was the Commission, as a collegial body, which then as now, had the jurisdiction to "(d)ecide any case broubefore it within sixty days from the date of its submission for resolution," subject to review by the Supreme Court on certiorari. 21

Hence, the adoption or ratification of the Espiritu decision by the Acting COA Chairman was inconsequential. Ratification cannot validatact void ab initio because done absolutely without authority. The act has to be done anew by the person or entity duly endowed wauthority to do so.

Moreover, even conceding the contrary, no proper ratification or validation could have been effected by the Acting Chairman since he not the Commission, and he himself had no power to decide any case brought before the Commission, that power, to repeat, being lodonly in the Commission itself, as a collegial body. chanrobles virtual lawlibrary

Parenthetically, the proposition advocated in this connection that Chairman Domingo may no longer question the validity of the EspDecision" (No. 77-142) because in assailing it, he had referred to it as "a decision of the Commission on Audit and not merely of its thActing Chairman," is so patently unmeritorious as to deserve scant consideration.

2. The petitioner argues that to sanction the foregoing principle would result in the invalidation of "hundreds of decisions and orsigned by or signed by authority of the Acting Chairman Tantuico (alone)," considering that there was an appreciable interval during whonly an Acting Chairman had been designated and no other Commissioner had been appointed or was otherwise acting as such. It suff

to rule, as this Court has already had occasion to in an analogous case, that the principle should logically apply only to those partic



nstances where there was a timely and specific challenge to the authority of the Acting COA Chairman to exercise the poweradjudication or decision; it should not affect all other cases where the parties expressly or by implication accepted the adjudicaauthority of the Chairman. 22

3. The petitioner next contends that the objection — that the "Espiritu Decision" was "technically invalid due to . . . lackcollegiality" — was waived by failure of Atty. David to raise it in his motion for reconsideration, in which motion he confined his argumeto the merits of the decision, and additionally, by his failure, after denial of his motion for reconsideration, to appeal to the Supreme Cowith the result that the judgment became final and executory as of October 7, 1978.

The contention is also without merit. The record shows — although the petition does not allege 23 — that in a letter dated May 10, 19

Mr. David did dispute Decision No. 77-142 because rendered only by the Manager, Technical Service Office of the COA, and "not (by) Acting Chairman, much less xx the Commission on Audit" "duly constituted, by the appointment and qualification of its Chairman and Commissioners," "as specifically provided by Section 2, Article XII-D of the (1973) Constitution." He reiterated the challenge to ActChairman Tantuico’s constitutional authority to act on the claim on its merits, in his letter dated April 5, 1979, and reques ted that same be submitted for resolution by the Commission on Audit, after the appointment of the two (2) commissioners thereof, as requiredSection 2, Article XII-D of the Constitution." 24 And in another communication dated April 20, 1981, Mr. David once more requested thaapplication for reconsideration be acted on collegially, considering that "a Commissioner had (already) been appointed as members of Commission."cralaw virtua1aw library

Furthermore, it must be made clear that the Espiritu Decision was not merely "technically invalid," as the petitioner describes it. It substantively void ab initio, because rendered without jurisdiction. It had an essential inherent defect that could not be cured or waived

5. The petitioner also maintains that if the Espiritu Decision, or Decision No. 77-142 be held void because adopted and signed onl

Acting COA Chairman Tantuico, then the decision embodied in the 4th Indorsement dated June 22, 1987, signed only by incumbent CChairman Domingo, should also be pronounced void. There is no parity in situation. In the first place, when Decision No. 77-142 rendered, there was no commissioner in the Commission on Audit except the Acting Chairman himself On the other hand, when the ndorsement dated June 22, 1987 was rendered, there were two (2) members of the Commission: the Chairman, and Commissio

Fernandez, clearly a number sufficient to satisfy the constitutional requirement for collegial action. Moreover, it is made clear in saidndorsement that the decision therein embodied was that of the Commission, composed of Chairman Domingo and Commissio

Fernandez. The phrase therefore, by which Chairman Domingo describes the capacity in which he acted, i.e., "FOR THE COMMISSIOmust be taken as entirely accurate, not only because of the familiar presumption of regularity of performance of official functions, because the records do show Commissioner Fernandez’ full concurrence with the decision in said indorsement. Besides, said

ndorsement was ratified and reaffirmed by "COA Decision No. 992" of May 19, 1989 signed by "the full complement of three (3) membof the Commission on Audit," 25 to the effect inter alia that the 4th Indorsement dated June 22, 1987, (of Chairman Domingo Commissioner Fernandez) should be "deemed for all legal intents and purposes as the final decision on the matter . . ."cralaw virtua1

ibrary

t thus appears that not only does the petition fail to show any grave abuse of discretion on the part of the respondent Commission in rendition of its decision embodied in the 4th Indorsement dated June 22, 1987 and its Decision No. 992 of May 19, 1989, but that thjudgments are in fact in accord with the relevant facts and applicable legal principles. chanrobles virtual lawlibrary

WHEREFORE, the petition is DISMISSED for lack of merit, without pronouncement as to costs.

SO ORDERED.

Fernan (C.J.), Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-Aquino, Mediaand Regalado, JJ., concur.

ATTY. PRAXEDIO P. DINGCONG, Petitioner, v. HON. TEOFISTO T. GUINGONA, JR., Chairman, B. C. FERNANDEZ, JR., and COMMISSIONEUFEMIO C. DOMINGO Commissioner, COMMISSION ON AUDIT Quezon City, Respondents.

D E C I S I O N

MELENCIO-HERRERA, J.:

An appeal on Certiorari seeking to annul and set aside the decision of respondent Commission on Audit (COA) in its 7th Indorsement September 1986 disallowing petitioner’s claim for reimbursement of payments he had advanced for services rendered on "pakyao" bas

the renovation and improvement of the office of the Bureau of Treasury, Iloilo City.



Petitioner, Atty. Praxedio P. Dingcong, was the former Acting Regional Director of Regional Office No. VI of the Bureau of Treasury in ICity, until his retirement on 17 January 1984.

On three occasions — June 1982, September 1982 and February 1983 — petitioner, after public bidding, contracted, admittedly on"emergency labor basis," the services of one Rameses Layson, a private carpenter and electrician on "pakyao" basis for the renovation mprovement of the Bureau of Treasury Office, Iloilo City. Layson submitted the lowest bids so that the contracts were awarded to him

follows:chanrob1es virtual 1aw library

Dates Contract Amount Working Days

June, 1982 P2,800.00 17 days

Sept, 1982 2,980.00 44 days

Feb., 1983 2,522.00 35 days

————

Total P8,302.00

Subsequently, Layson was hired as a casual employee in the Bureau of Treasury Office in order to do away with the hiring of a privcarpenter and electrician.

When petitioner retired on 17 January 1984, among the items disallowed by the Resident Auditor was the amount of P6,574.00 from abor contracts with Layson, by reducing the latter’s daily rate f rom P40.00 per day to P18.00 daily.

Petitioner appealed to the Chairman of the Commission on Audit, who affirmed the disallowance as being "excessive and disadvantageto the government," but increased Layson’s daily rate to P25.00 thereby reducing the total amount disallowed to P4,276.00. Despetitioner’s request for reconsideration, respondent Commission remained unmoved, hence, the instant appeal.

On 8 April 1987, we resolved to give due course to the petition and required the parties to submit their respective memoranda, which thave done.

Petitioner assails the disallowance as invalid for being a usurpation of a management function and an impairment of contract.chanro

virtual lawlibrary

We reject petitioner’s submission.

Not only is the Commission on Audit (COA) vested with the power and authority, but it is also charged with the duty, to examine, audit settle all accounts pertaining to . . . the expenditures or uses of funds . . . owned . . . by, or pertaining to, the Government or any ofsubdivisions, agencies, or instrumentalities (Article IX [D], Section 2 [1], 1987 Constitution). That authority extends to the accounts opersons respecting funds or properties received or held by them in an accountable capacity (Section 26, P. D. No. 1445). In the exercists jurisdiction, it determines whether or not the fiscal responsibility that rests directly with the head of the government agency has b

properly and effectively discharged (Section 25[1], ibid.), and whether or not there has been loss or wastage of government resources. also empowered to review and evaluate contracts (Section 18 [4], ibid.). And, after an audit has been made, its auditors issue a certificatsettlement to each officer whose account has been audited and settled in whole or in part, stating the balances found due thereon certified, and the charges or differences arising from the settlement by reason of disallowances, charges or suspensions (Section 82, ibid

Viewed in this light, the disallowance made by COA is neither illegal nor a usurpation of a management function. The authority of petitioner, as agency head, to enter into a contract is not being curtailed. What COA maintains is that the "pakyao" contract has prodisadvantageous to the government.

Addressing this issue now, the payments for the "pakyao" labor contract were disallowed on the ground that the cost of that contract excessive and, therefore, disadvantageous to the government in that the rate applied by petitioner was P40.00/day when the prevairate at that time was only P25.00/day for casuals.

We find ourselves in disagreement.

The labor contract entered into by petitioner was on the "pakyao" basis. On the other hand, the transaction was audited on a d

minimum wage rate basis. The result was that the emergency nature of the contract was overlooked, a different cost of labor for casu



was imposed, the assistance of two other carpenters who worked with Layson even on Saturdays was disregarded, and Layson’s ad ditiskill as an electrician and plumber was not adequately considered.

ndeed, the criteria for a daily wage rate contract can hardly be applied to "pakyao" arrangements, the two being worlds apart. In "pakya worker is paid by results. It is akin to a contract for a piece of work whereby the contractor binds himself to execute a piece of workthe employer, in consideration of a certain price or consideration. The contractor may either employ his labor or skill, or also furnish material (Article 1713, Civil Code). Not so in a contract on a daily wage basis, where what is paid for is the labor alone. Under the "pakysystem, payment is made in a lump sum; the laborer makes a profit for himself, which is justified by the fact that any loss would alsoborne by him. On the other hand, no profit inures to the daily wage worker and no materials are furnished by him. The "pakyarrangement is not without its advantages. The tendency to dilly-dally on the work, generally experienced in a daily wage contract, is ha

present in labor on a "pakyao" basis. The latter can also be more flexible, with the need for supervision reduced to the minimum. It is necessarily frowned upon. In fact; it is recognized in the Labor Code (Article 101), and even in the Revised Manual of InstructionTreasurers, which provides that "except in construction or repairs requiring technical skill such as upon buildings, bridges, water wostructures, culverts, etc., when the total cost of the work does not exceed P3,000.00, the same may be performed under the ‘paky

contract . . ." (Section 750), In this case, each contract with Layson did not exceed P3,000.00.chanrobles.com:cralaw:red

Recourse to a "pakyao" labor contract, therefore, is not necessarily disadvantageous. In this case, it was entered into only after pubidding pursuant to existing regulations through canvass among three qualified "bidders." Since Layson submitted the lowest price, econtract was awarded to him. The Court also notes that Layson was subsequently hired as a casual in the Bureau of Treasury Office in oto do away with the hiring of a carpenter and electrician, thereby exhibiting an awareness on petitioner’s part of government interests

a positive effort to avail of cost-cutting options.

WHEREFORE, the Decision of the Commission on Audit is hereby SET ASIDE, and it is hereby ordered to refund to petitioner the disallow

tem of P4,276.00, which amount was deducted from his terminal leave voucher upon his retirement.

SO ORDERED.

EN BANC

[G.R. No. 85285. July 28, 1989.]

DANVILLE MARITIME, INC., Petitioner, v. COMMISSION ON AUDIT, Respondent.

[G.R. No. 87150. July 28, 1989.]

COMMISSION ON AUDIT, Petitioner, v. REGIONAL TRIAL COURT, NATIONAL CAPITAL JUDICIAL REGION, Branch 140, Makati, Metro Mapresided by HONORABLE JUDGE LETICIA P. MORALES, and DANVILLE MARITIME, INC., Respondents.

SYLLABUS

1. ADMINISTRATIVE LAW; COMMISSION ON AUDIT; PUBLIC BIDDING; COMPETITION, DEFINED; THAT ONLY PETITIONER SUBMITTEBID DOES NOT AFFECT VALIDITY OF BIDDING. — Competition as an essential element of public bidding merely means that the biddingconducted fairly and openly, with equal opportunity among potential bidders to submit bids without being stifled by factors other tthose contained in properly promulgated guidelines. In the bidding conducted on September 15, 1988, every potential bidder was givefair and equal opportunity to bid. The fact that it was only petitioner which submitted a bid does not affect the validity of the biddconducted, more so, since it was conducted in the presence of and without objections from the COA representative.

2. ID.; ID.; EXCLUSIVE AUTHORITY THEREOF, CITED. — We see no reason to disturb the interpretation given by the COA to the te"public bidding" and what constitutes its "failure." No less than the Constitution has ordained that the COA shall have exclusive authoritdefine the scope of its audit and examination, establish the techniques and methods required therefore, and promulgate accounting auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagantunconscionable expenditures, or use of government funds and properties.

3. ID.; PUBLIC BIDDING; A MATTER OF PUBLIC POLICY. — There is no doubt that awards of public contracts thru public biddingmatter of public policy as can be gleaned from Section 4 of P.D. 1594 which provides that construction projects shall generallyundertaken by contract after "competitive public bidding." Section 79 of P.D. 1445 likewise requires public auction to be the primary mof disposal of public assets.



4. ID.; ID.; PURPOSES; DIFFERENCE BETWEEN PUBLIC BIDDING FOR DISPOSITION OF GOVERNMENT ASSETS, EXPLAINED. — By its nature and characteristic, a competitive public bidding aims to protect the public interest by giving the public the best possible advantathru open competition. Another self-evident purpose of public bidding is to avoid or preclude suspicion of favoritism and anomalies in execution of public contracts. Public bidding of government contracts and for disposition of government assets have the same purpose objectives. Their only difference, if at all, is that in the public bidding for public contracts the award is generally given to the lowest bidwhile in the disposition of government assets the award is to the highest bidder.

5. ID.; ID.; ID.; PHRASE "PUBLIC AUCTION" OR "PUBLIC BIDDING" IMPORTS A SALE TO HIGHEST BIDDER WITH ABSOLUTE FREEDFOR COMPETITIVE BIDDING; COMPETITIVE BIDDING REQUIRES AT LEAST TWO BIDDERS. — The phrase "public auction" or "public biddmports a sale to the highest bidder with absolute freedom for competitive bidding. Competitive bidding requires that there be at least

(2) bidders who shall compete with each other on an equal footing for winning the award. If there is only one participating bidder, bidding is non-competitive and, hence, falls short of the requirement. There would, in fact, be no bidding at all since, obviously, the lparticipant cannot compete against himself.

6. ID.; ID.; ID.; FACTORS THAT STIFLE UNFAIR COMPETITION MUST BE AVOIDED. — It is imperative that such "extraneous" factor"any conduct, artifice, agreement or combination the purpose and effect of which is to stifle fair competition and chill bidding" mustavoided in public bidding. No doubt a one bidder situation tends to stifle fair competition. The requirement of having at least two biddprevents any such conduct, artifice, agreement or combination that jeopardizes the integrity of the bidding.

7. ID.; COMMISSION ON AUDIT; CONSTRUCTION BY OFFICE CHARGED WITH IMPLEMENTING AND ENFORCING PROVISIONS OSTATUTE GIVEN CONTROLLING WEIGHT. — Well settled is the rule that the construction by the office charged with implementing enforcing the provisions of a statute should be given controlling weight. In the absence of error or abuse of power or lack of jurisdictiongrave abuse of discretion already conflicting with either the letter or the spirit of a legislative enactment creating or chargin

governmental agency with the administration and enforcement thereof, the action of the agency would not be disturbed by the judidepartment.

8. REMEDIAL LAW; CIVIL PROCEDURE; DISMISSAL OF ACTIONS; FORUM SHOPPING, A GROUND FOR DISMISSAL OF BOTH ACTIONSUPREME COURT AS WELL AS IN LOWER COURT. — The Court takes note of the fact that simultaneously with the filing of the instpetition on October 17, 1988, as above related petitioner filed a similar complaint for injunction and damages against the PNOC before Regional Trial Court of Makati. This is clearly a case of forum shopping which calls for the dismissal of both actions, in this Court as well athe lower court. A reading of the allegations of the complaint filed with Regional Trial Court and those of the instant petition show tboth actions arose from the same transaction, involving the same subject matter, facts and circumstances.

9. ID.; ID.; PRESENCE OF COA REPRESENTATIVES DOES NOT RENDER THE BIDDING AS VALID. — Petitioner cannot argue that bidding was valid as the COA representative then present made no objections to the same. The role of said COA representative at the t

of bidding was only as a witness to insure documentary integrity, i.e., by ensuring that every document is properly identified and/or marand that the records of the bidding are securely kept. Nevertheless as above stated, soon after the bidding, the COA sent its memorandto the PNOC that there is a failure of public bidding due to the one-bidder situation. Moreover, said memorandum of agreement with PNOC was still subject to COA approval as embodied in the same and in consonance with existing rules and regulations. Nonetheless,subsequent disapproval of the sale by COA did not thereby bar petitioner from participating in the rebinding ordered by the COA.

10. ID.; COURTS; JURISDICTION; REGIONAL TRIAL COURTS HAS NO JURISDICTION TO REVIVE A DECISION OF THE COMMISSIONAUDIT UNDER THE CONSTITUTION. — As emphasized in the petition in G.R. No. 87150, the RTC court has no jurisdiction to reviedecision of the COA under the Constitution. This is a matter within the exclusive jurisdiction of this Court. Although apparently said Case 88-2194 against PNOC was intended to stop a rebinding of the vessel in question, necessarily in the same proceeding, the trial cmust determine if the COA committed a grave abuse of discretion in disapproving the sale of the vessel to respondent Danville Maritinc. This it has no power to do.

R E S O L U T I O N

GANCAYCO, J.:

n the petition for review in G.R. No. 85285, petitioner seeks to set aside the letter-directive of respondent Commission on Audit (COAbrevity) disapproving the result of the public bidding held by the Philippine National Oil Company (PNOC for brevity) of the sale otanker-vessel "T/T Andres Bonifacio" on the ground that only one bidder submitted a bid and to direct COA to approve the said sale.

n the early part of 1988, the PNOC, through its Board of Directors, passed a resolution authorizing the sale by public bidding of its fourte

year old turbine tanker named "T/T Andres Bonifacio" due to old age and the high cost of maintenance. Accordingly, a Disposal Commit



was created to undertake the auction sale subject to existing rules and regulations of the COA. Under the "Amended Terms and Conditiof the Bidding," 1 its floor price was pegged at US$ 14 million with sealed bids to be dropped at the designated bid box not later than scheduled bidding date on September 1, 1988 together with the bid deposit at 10% of the floor price.

Notice of the bidding was advertised in newspapers of general circulation, here and abroad, for 3 consecutive days. Sixty-five foreembassies were also formally notified.

The bidding did not take place as originally scheduled and instead it was held on September 15, 1988 with representatives of various land international companies in attendance. Petitioner Danville Maritime, Inc., a Liberian corporation, was the sole bidder with a bidUS$14,158,888.88. The Disposal Committee declared the bid of petitioner to be the winning bid and directed it to transmit to the PN

10% of their bid which they immediately complied with.

On September 17, 1988, the PNOC and petitioner executed a "Memorandum of Agreement" for the sale of the "T/T Andres Bonifacwhich provides among others that:jgc:chanrobles.com.ph

"1. The sale of the Vessel is subject to the Seller obtaining all clean Philippine Government’s approvals and/or clearances requi

under existing laws, rules and regulations including such approvals from the Office of the President of the Philippines, the CommissionAudit (COA), The Board of Directors of PNOC, the Maritime Industry Authority (MARINA), the Philippine Coast Guard (PCG), The CenBank of the Philippines (CB), (Export Licence), and any Philippine documentation necessary, within thirty (30) calendar days from the dof this Agreement. In the event of the approvals from either of the government agencies mentioned aboved being unobtainable withinstate period, or such request for approval is denied, then this Agreement shall be null and void and the Seller is not liable for any damawhatsoever. 2

On September 20, 1988, the COA thru its State Auditor IV Tobias P. Lozada issued a memorandum to the Chairman of the DispoCommittee advising the latter to wit 1) that the proposed contract must first be submitted to COA for review before it is signed; 2) thatpublic bidding conducted suffers from the deficiency of lack of competition as there was only one bidder and; 3) that the alternative mof award, i.e., negotiation with the lone bidder may not be resorted to as there has been less than two public biddings held. 3

n a letter of September 28, 1988, the PNOC thru its President Manuel Estrella requested for the formal approval of the COA of the salethe subject vessel in favor of petitioner. 4

On October 6, 1988, the PNOC received a telex from Fearnly Finans, a Norwegian company, offering to buy the vessel on negotiated salea price of at least US$ 1 million higher than the bid given on September 15, 1988 by petitioner. 5 This offer was rejected by the PNOC telex of the following day. 6

On October 12, 1988, the PNOC received the now questioned letter-directive of the COA dated October 10, 1988 denying the requesPNOC for approval of the proposed sale to the petitioner which reads as follows:jgc:chanrobles.com.ph

"October 10, 1988

President Manuel A. Estrella

Philippine National Oil Company

Makati, Metro Manila

Dear President Estrella:chanrob1es virtual 1aw library

This refers to your letter dated September 28, 1988 requesting the approval of this Commission of the sale of the vessel Ànd res Bonifan favor of Danville Maritime Ltd. of Liberia.

The only issue to be resolved is whether a single bid, which satisfies the minimum price requirement, may be accepted without undertaa second bid solicitation as required in COA Circular No. 86-264 as follows:chanrob1es virtual 1aw library

‘b. If the first bidding fails, readvertise and conduct a second bidding.

c. If the second bidding fails, a negotiated sale may be resorted to subject to the approval of the Commission on Audit.’ (Sec. 4COA Circular No. 86-264).

Bidding Failure



The aforecited COA Circular No. 86-264, which is entitled ‘General Guidelines on the divestment of assets of government -owned ancontrolled corporations, and their subsidiaries,’ does not provide what constitute a failure in public bidding. However, the 1Amendments to the Implementing Rules and Regulations to P.D. No. 1594 (Prescribing Policies, Guidelines, Rules and RegulationsGovernment Infrastructure Contracts) provides, in so far as pertinent, as follows:chanrob1es virtual 1aw library

B 2-3 EVALUATION OF BIDS

‘x x x

‘At the time of opening of bids, there shall be at least two (2) competing bidders. In case there is only one bidder, the bid shall be retur

unopened and the project shall be advertised anew for bidding. Should after rebidding, there be still only one bidder, the project, mayundertaken by administration or thru negotiated contract giving preference to the lone bidder."cralaw virtua1aw library

While P.D. No. 1594 pertains only to infrastructure service contracts, its provisions governing the evaluation of bids partake of a NatioGovernment policy in the matter of public biddings, and hence are equally applicable to those conducted for assets disposition.

Another Interested Buyer

"Only last week, I received a telex from Per Olav Karlsen, Managing Director, Fearnley Finans (Prosjekt), manifesting interest in buying vessel T/T Andres Bonifacio for a guaranteed price of at least US$1 million higher than the bid offer of Danville Maritime Ltd. In the satelex it was informed that a separate communication was sent to the President, PNOC, quoted as follows:chanrob1es virtual 1aw library

‘RE: SALE OF "T/T ANDRES BONIFACIO"

WE WOULD LIKE TO REITERATE OUR INTEREST IN BUYING THE T/T ANDRES BONIFACIO. WE ARE WILLING TO GUARANTEE A PRICE OFLEAST US$ 1 MILLION HIGHER THAN THE BID GIVEN ON SEPTEMBER 15, 1988, ON A NEGOTIATED SALE.’

"On the same day you will recall that we discussed over the phone the matter of Mr. Karlsen’s offer, which you described as a ‘nuisa

offer,’ and to which I replied that the only way to find out if such is so, is to accept Mr. Karlsen’s offer. It, therefore, surprise s us no enreceive a copy of your cable replay to Mr. Karlsen dated October 7, 1988 categorically rejecting his offer of at least US$ 1 million over above the bid of Danville Maritime Ltd., purportedly for the reason that èxisting government policy as well as the disposal rules approby . . . Board do not allow PNOC to accept the terms and conditions under which you have o ffered to buy the tanker.’

COA Position

"This Commission cannot see its way clear why the Disposal Committee took upon itself to award the vessel, in apparent haste, to the lbidder Danville Maritime, Ltd. in spite of the aforecited regulations. On top of this is your perfunctory rejection of a bid offer which benefit your Corporation with US$ 1 million more in terms of sales proceeds. In order, therefore, to cast aside any cloud of doubt as tomotives of the management of PNOC especially in view of the significantly higher price offer of Fearnly Finans, coupled with the fact tthe Government is presently so concerned about transparency in government transactions, this Commission hereby directs a purebidding of the vessel ‘Andres Bonifacio,’ copy of the notice of such rebidding furnished Fearnly Finans.

Please be guided accordingly.

Very truly yours,

(SGD.) EUFEMIO C. DOMINGO

Chairman" 7

The following day, petitioner was informed that the PNOC Board of Directors had ordered a rebidding for the sale of the vessel pursuanthe COA directive.

n a letter dated October 13, 1988, petitioner requested the PNOC to join them in a contemplated appeal to this Court to question the Cdirective. 8 This request was not answered by the PNOC. Hence, this petition for certiorari wherein petitioner questions the letter-direcof the COA dated October 10, 1988.

Simultaneously with this petition, a separate complaint for injunction and damages was filed by petitioner before the Regional Trial CouMakati seeking to enjoin the PNOC from conducting a rebidding and/or from selling to other parties the vessel "T/T Andres Bonifacio" to the COA directive disapproving the proposed sale to petitioner which is docketed as Civil Case No. 88-2194, to extend the period

compliance with paragraph No. 1 of the Memorandum Agreement and for damages. 9



The principal question in this petition is whether or not the public respondent COA committed a grave abuse of discretion when it ruthat there was a failure of bidding when only one bid was submitted and subsequently ordered a rebidding.

Petitioner’s argument is as follows: The COA was in grave error in its perception that when there is only one actual bid subm itted, theconsequently no competition and thus there is a "failure of bidding." Competition as an essential element of public bidding merely methat the bidding the conducted fairly and openly, with equal opportunity among potential bidders to submit bids without being stifledfactors other than those contained in properly promulgated guidelines. In the bidding conducted on September 15, 1988, every potenbidder was given a fair and equal opportunity to bid. The fact that it was only petitioner which submitted a bid does not affect the validof the bidding conducted, more so, since it was conducted in the presence of and without objections from the COA representative.

Petitioner further argues that the disposal of government assets is governed by Section 79 of P.D. 1445, otherwise known as "Government Auditing Code of the Philippines" which provides:jgc:chanrobles.com.ph

"SECTION 79. Destruction or sale of unserviceable property. — When government property has become unserviceable for any causes no longer needed, it shall, upon application of the officer accountable therefor, be inspected by the head of the agency or his d

authorized representative in the presence of the auditor concerned and, if found to be valueless or unsaleable, it may be destroyed in tpresence. If found to be valuable, it may be sold at public auction to the highest bidder under the supervision of the proper committeeaward or similar body in the presence of the auditor concerned or other duly authorized representative of the Commission, aadvertising by printed notice in the Official Gazette, or for not less than three consecutive days in any newspaper of general circulationwhere the value of the property does not warrant the expense of publication, by notices posted for a like period in at least three puplaces in the locality where the property is to be sold. In the event that the public auction fails, the property may be sold at a private sasuch price as may be fixed by the same committee or body concerned and approved by the Commission."cralaw virtua1aw library

and COA Circular No. 86-264, prescribing the general guidelines for the divestment or disposal of assets of government-owned andcontrolled corporation, and their subsidiaries, which sets forth the following procedure:jgc:chanrobles.com.ph

"4. 1.4.

x x x

b. If the first bidding fails, readvertise and conduct a second bidding.

c. If the second bidding fails, a negotiated sale may be resorted to subject to the approval of the Commission on Audit."cra

virtua1aw library

Petitioner points out that both P.D. 1445 and COA Circular No. 86-264 do not define "failure of public bidding," so the COA committegrave error when it declared that a one-bidder situation constitutes such "failure of public bidding."cralaw virtua1aw library

COA in its questioned letter-directive acknowledged the fact that COA Circular No. 86-264 does not define what constitutes a failurepublic bidding. Nevertheless, as aforestated COA applied the provisions of the 1988 Amendments to the Implementing Rules Regulations to P.D. 1594 (Prescribing Policies, Guidelines, Rules and Regulations for Government Infrastructure Contracts), hereinabreproduced in the COA letter as follows —

"IB 2-3 EVALUATION OF BIDS

"x x x

"At the time of opening of bids, there shall be at least two (2) competing bidders. In case there is only one bidder, the bid shall be returunopened and the project shall be advertised anew for bidding. Should after rebidding, there be still only one bidder, the project mayundertaken by administration or thru negotiated contract giving preference to the lone bidder."cralaw virtua1aw library

The COA opined that while P.D. No. 1594 pertains only to infrastructure contracts, its provisions governing the evaluation of bids partaka national government policy in the matter of public bidding, and hence, are equally applicable to those conducted for dispositiongovernment assets.

The COA earlier informed the PNOC in its Memorandum dated September 20, 1988 that the award of the contract to a lone bidder sufffrom the deficiency of lack of competition, which is a condition sine qua non in public biddings. For this reason it declared the biddconducted to be a failure in its subsequent letter of October 10, 1988.



We see no reason to disturb the interpretation given by the COA to the term "public bidding" and what constitutes its "failure." No than the Constitution has ordained that the COA shall have exclusive authority to define the scope of its audit and examination, estabthe techniques and methods required therefore, and promulgate accounting and auditing rules and regulations, including those forprevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or use of government fuand properties. 10

The COA, realizing that the applicable law and rules and regulations as to the disposal of government assets failed to provide for a cdefinition of "failure of public bidding," of government assets, properly considered the definition under the implementing rules of P.D. 1which governs infrastructure projects to be applicable in the disposition of government assets.

There is no doubt that awards of public contracts thru public bidding is a matter of public policy as can be gleaned from Section 4 of 1594 which provides that construction projects shall generally be undertaken by contract after "competitive public bidding." Section 7P.D. 1445 likewise requires public auction to be the primary mode of disposal of public assets. By its very nature and characteristicompetitive public bidding aims to protect the public interest by giving the public the best possible advantages thru open competitionAnother self-evident purpose of public bidding is to avoid or preclude suspicion of favoritism and anomalies in the execution of pucontracts. 12 Public bidding of government contracts and for disposition of government assets have the same purpose and objectives. Tonly difference, if at all, is that in the public bidding for public contracts the award is generally given to the lowest bidder while in disposition of government assets the award is to the highest bidder.

t must be in this light, that the COA declared the subject public bidding to be a failure in this case, applying the same policy agovernment infrastructure contracts.

The phrase "public auction" or "public bidding" imports a sale to the highest bidder with absolute freedom for competitive bidding

Competitive bidding requires that there be at least two (2) bidders who shall compete with each other on an equal footing for winningaward. If there is only one participating bidder, the bidding is non-competitive and, hence, falls short of the requirement. There wouldfact, be no bidding at all since, obviously, the lone participant cannot compete against himself. 14

Moreover, the "Amended Terms and Conditions of Bidding/Sale" in this case provides:jgc:chanrobles.com.ph

"6. If there is/are any other qualified bid(s) submitted lower than by not more than US$500,000 from the highest qualifiedsubmitted, an open auction shall be conducted exclusively among all of such bidders, inclusive of the bidder making the highest (seabid; however, only those who submitted bids of at least US$14,000,000 shall be qualified to participate therein. The open auction shalconducted between 5:00 P.M. to 8:00 P.M. of the bidding date upon opening of the sealed bids; for this reason, it is suggested thatbidders be represented during the bid-opening processes, possessed of sufficient authorizations from their respective principals to bidatter in the open auction, the original copies of which authorizations should be readily available for examination by the Seller as to

authenticity and sufficiency thereof.

x x x

9. The bid deposit of losing bidders will be returned to them as soon as the highest bid has been determined. However, the nhighest bidder may elect to leave his deposit if he wishes to automatically succeed the highest bidder should the highest bidder defaults obligations under paragraph 12 hereof." 15

From the foregoing terms and conditions of the bid one can easily glean that it is contemplated that there be at least two bidders. Thevident from the foregoing provisions that when the next highest qualified bid submitted is lower than by not more than $500,000 fromhighest qualified bid submitted, an open auction shall be conducted exclusively among all such bidders; and that the next highest bidnstead of withdrawing his bid deposit may elect to leave his deposit so he may automatically succeed the highest bidder should the la

default in his obligation.

Under COA Circular No. 88-264 herein above reproduced, it is provided that if the first bidding fails, a second bidding must be conducafter advertising same. It is only when the second bidding fails that a negotiated sale may be undertaken. Thus a negotiated sale witsingle bidder is allowed only after the second bidding fails. The only logical conclusion therefrom is that in the 1st and 2nd bidding, thshould at least be two (2) bidders, otherwise there is a failure of bidding.

Petitioner acknowledges that in a public bidding there must be competition that is legitimate, fair and honest invoking the followcitations:jgc:chanrobles.com.ph

"Competition must be legitimate, fair and honest. In the field of government contract law, competition requires, not only `bidding upocommon standard, a common basis, upon the same thing, the same subject matter, the same undertaking,’ but also that it be leg itim

fair and honest; and not designed to injure or defraud the government. Any form of agreement entered into between bidders which h



tendency to restrain natural rivalry and competition of the parties, or operates to stifle or suppress competition is against public policy therefore void. As stated by the Court in Re Salmon, 145 Fed. 649, 652.’It is a uniform, inflexible rule of law that all such combinations,effect of which is to stifle competition in bidding at public or private sales, or in the letting of public works . . . are immoral, vicious, void." ‘ (Lucenario, Ibid, pp. 70-71; citing Flynn Const., Et Al., Leininger, Et Al., supra; 43 Am. Jur. 774; Hunt v. Elliot, 80 Ind. 245, 41 ARepl. 794; Pike v. Balch, 38 Mc. 302, 61 Am. Dec. 248; Smith v. Ullman, 58 Md. 183, 42 Am. Rep. 329; 2 R.C.L. Sec. 18, p. 134; 45 A.L.R. 5As to the rule on the matter in England and Canada, see annotation in 45 A.L.R. 553; 20 Ann. Cas. 387.)

"Competitive bidding is an essential element of an auction sale, and such a sale should be conducted fairly and openly with full and opportunity for competition among bidders. It is the policy of the law that a fair price be received by the parties interested in the propsold and that this be not prevented by the stifling of competition among bidders." (7 Am. Jur. 2d p. 246). 16

t is imperative that such "extraneous" factors as "any conduct, artifice, agreement or combination the purpose and effect of which isstifle fair competition and chill bidding" 17 must be avoided in public bidding. Examples of these stifled biddings are following:jgc:chanrobles.com.ph

"1) Agreement to combine interest and divide the profit;

2) Agreement to withdraw from the bidding;

3) Agreement to bid on separate portion of the work;

4) Pre-arranged or rigged bidding;

5) Combination among bidders and a public official; and

6) Agreement to submit identical or uniform bids." 18

No doubt a one bidder situation tends to stifle fair competition. The requirement of having at least two bidders prevents any such condartifice, agreement or combination that jeopardizes the integrity of the bidding.

Well settled is the rule that the construction by the office charged with implementing and enforcing the provisions of a statute shouldgiven controlling weight. 19 In the absence of error or abuse of power or lack of jurisdiction or grave abuse of discretion already conflicwith either the letter or the spirit of a legislative enactment creating or charging a governmental agency with the administration enforcement thereof, the action of the agency would not be disturbed by the judicial department. 20

n the case at bar, there is no showing that the COA committed grave abuse of discretion. COA has clearly shown its position to the PNOts questioned letter-directive advising the latter of its misgivings as to why the award was given to the lone bidder inspite of regulatipreviously made known to PNOC and to top it all, why the PNOC perfunctorily rejected a much higher bid which appears to be mbeneficial to the corporation. Rather than condemn the COA as petitioner proposes, the COA should be commended for its zeal and carnsuring that the disposition of the subject vessel would be in a manner most advantageous to the government. A rebidding removes

suspicion that may arise out of the sale of the vessel to petitioner under present circumstances.

The Court holds that a second public bidding is ordained so that all government transactions would be competitive and above board.

Under COA Circular No. 86-257, a proposed contract for the disposal of capital assets shall be submitted for examination and review ofhead of the auditing unit concerned before the same is signed by the contracting government official. The transaction constitutingdisposal of capital assets shall be audited before the transaction is consummated. 21 COA had advised the PNOC in its memorandumSeptember 20, 1988 that the proposed contract of sale for the vessel should be reviewed by COA before it is signed. Unfortunately, PN

proceeded with the execution of the Memorandum of Agreement much earlier, that is on September 17, 1988, before the COA was asto pass upon the same. Nevertheless, it is therein stipulated that the sale of the vessel is subject to the seller (PNOC) obtaining all requiclearances which includes approval of the COA, otherwise, the agreement shall be null and void. 22

Petitioner cannot argue that the bidding was valid as the COA representative then present made no objections to the same. The role of COA representative at the time of bidding was only as a witness to insure documentary integrity, i.e., by ensuring that every documenproperly identified and/or marked and that the records of the bidding are securely kept. 23 Nevertheless as above stated, soon afterbidding, the COA sent its memorandum to the PNOC that there is a failure of public bidding due to the one-bidder situation. Moreover, memorandum of agreement with the PNOC was still subject to COA approval as embodied in the same and in consonance with exisrules and regulations. Nonetheless, the subsequent disapproval of the sale by COA did not thereby bar petitioner from participating in rebidding ordered by the COA.



The Court takes note of the fact that simultaneously with the filing of the instant petition on October 17, 1988, as above related petitiofiled a similar complaint for injunction and damages against the PNOC before the Regional Trial Court of Makati. This is clearly a caseforum shopping which calls for the dismissal of both actions, in this Court as well as in the lower court. 24 A reading of the allegations ofcomplaint filed with Regional Trial Court and those of the instant petition show that both actions arose from the same transaction, involthe same subject matter, facts and circumstances.

n the attempt to make the two actions appear to be different, petitioner impleaded different respondents therein — PNOC in the cbefore the lower court and the COA in the case before this Court and sought what seems to be different re liefs. Petitioner asks this Couset aside the questioned letter-directive of the COA dated October 10, 1988 and to direct said body to approve the MemorandumAgreement entered into by and between the PNOC and petitioner, while in the complaint before the lower court petitioner seeks to en

the PNOC from conducting a rebidding and from selling to other parties the vessel "T/T Andres Bonifacio," and for an extension of timet to comply with the paragraph 1 of the memorandum of agreement and damages. One can see that although the relief prayed for in two (2) actions are ostensibly different, the ultimate objective in both actions is the same, that is, the approval of the sale of vessel in faof petitioner, and to overturn the letter-directive of the COA of October 10, 1988 disapproving the sale.

Thus, on March 3, 1989, COA filed in this Court the petition for prohibition with prayer for a temporary restraining order, docketed as GNo. 87150, against RTC Judge Leticia P. Morales who is the Presiding Judge of Branch 40, of the RTC of Makati, Metro Manila to whom RTC case (Civil Case No. 88-194) is assigned and the herein petitioner in G.R. No. 85285, on the ground that under the Constitution only Court can pass upon a decision of the COA as the letter-directive in question 25 so that the respondent court has no jurisdiction oversubject matter. On March 8, 1989, this Court required respondents to comment on the petition and issued a restraining order enjoiningrespondent judge from proceeding with the case. Said comment has been submitted.

n the meanwhile petitioner in G.R. No. 85285 asked leave to file a reply to the respondents’ comment. The reply having been filed

petitioner, upon order of the court, respondent filed a rejoinder. A supplementary reply was also filed by petitioner.

n the recent case of Palm Avenue Realty Development Corporation, Et. Al. v. Presidential Commission on Good Government, Et Al., 26 Court held —

". . . The filing by the petitioners of the instant special civil action for certiorari and prohibition in this Court despite the pendency of thaction in the Makati Regional Trial Court, is a species of forum-shopping. Both actions unquestionably involve the same transactions, same essential facts and circumstances. The petitioners’ claim of absence of identity simply because PCGG had not been impleaded inRTC suit and the suit did not involve certain acts which transpired after its commencements is specious. In the RTC action, as in the acbefore this Court, the validity of the contract to purchase and sell of September 1, 1986, i.e., whether or not it had been efficaciorescinded, and the propriety of implementing the same (by paying the pledgee banks the amount of their loans, obtaining the releasthe pledged shares, etc.) were the basic issues. So, too, the relief was the same; the prevention of such implementation and/or

restoration of the status quo ante. When the acts sought to be restrained took place anyway despite the issuance by the Trial Court temporary restraining order, the RTC, suit did not become functus officio. It remained an effective vehicle for obtention of relief; petitioners’ remedy in the premises was plain and patent: the filing of an amended and supplemental pleading in the RTC suit, so anclude the PCGG as defendant and seek nullification of the acts sought to be enjoined but nonetheless done. The remedy was certainly

the institution of another action in another forum based on essentially the same facts. The adoption of this latter recourse renders petitioners amenable to disciplinary action and both their actions, in this Court as well as in the Court a quo is dismissible."cralaw virtuaibrary

The said RTC case should therefore be dismissed for forum shopping as well as the herein petition in G.R. No. 85285.

And with more reason, as emphasized in the petition in G.R. No. 87150, the RTC court has no jurisdiction to review a decision of the Cunder the Constitution. 27 This is a matter within the exclusive jurisdiction of this Court. Although apparently said Civil Case 88-2194 agaPNOC was intended to stop a rebidding of the vessel in question, necessarily in the same proceeding, the trial court must determine if

COA committed a grave abuse of discretion in disapproving the sale of the vessel to respondent Danville Maritime, Inc. This it has no poto do.

WHEREFORE, the herein petition in G.R. No. 85285 is hereby DISMISSED for lack of merit. On the other hand, the petition in G.R. No. 87s granted, the restraining order this Court issued on March 8, 1989, is hereby made permanent and the said RTC Civil Case No. 88-2194

the Regional Trial Court of Makati is hereby ordered DISMISSED. This decision is immediately executory.

SO ORDERED.

[G.R. No. L-28594. June 30, 1971.]



EDILBERTO M. RAMOS, PACIANO CAPALONGAN, VICTORINO REYES, CONSORCIA JOVEN, JOSEFINA COLOMA, JOSE JOAQUIN, PetitionAppellants, v. HON. BENJAMIN H. AQUINO, Provincial Fiscal, Pasig, Rizal, BRIG. GEN. ROMEO ESPINO, AFP, Commanding General, PhilippArmy, Fort Bonifacio, Respondents-Appellees.

Clodualdo C. de Jesus for Petitioners-Appellants.

Solicitor General Antonio P. Barredo and Solicitor Augusto M. Amores for Respondents-Appellees.

SYLLABUS

1. ADMINISTRATIVE LAW; NATURE OF OFFICE OF AUDITOR GENERAL; PRELIMINARY INVESTIGATION BY PROVINCIAL FISCAL OF ALLEGCOMMISSION OF MALVERSATION THROUGH FALSIFICATION OF PUBLIC, OFFICIAL AND COMMERCIAL DOCUMENTS, CONDUCTED AFFINAL APPROVAL, BY AUDITOR GENERAL OF VOUCHERS, NOT AN ENCROACHMENT ON LATTER’S DUTY; CASE AT BAR. — Appellants, in tbrief, reiterate their principal argument that the order of the lower court dismissing their petition and thus allowing their investigationrespondent Fiscal to proceed, did amount to an encroachment on the constitutional prerogatives of the Auditor General. Such a contenacks merit. It betrays on its face a lack of understanding of the constitutional provision relied upon. The Auditor General, as noted

vested with the power to examine, audit and settle all accounts pertaining to the revenues and receipts from whatever source, andaudit, in accordance with law and administrative regulations, all expenditures of funds or property pertaining to or held in trust by government as well as the provinces or municipalities thereof. That is one thing. The ascertainment of whether a crime is committed anwhom is definitely another. There is thus a manifest failure on the part of appellants to appreciate correctly the constitutional objectivthe conferment of authority on the Auditor General. It is based on the fundamental postulate that in the division of powers, the con

over the purse remains with the legislative branch. There is the explicit requirement then that there be no expenditure of public fuexcept in pursuance of an appropriation made by law. There is need, therefore, for an enactment to permit disbursements from the putreasury. Nor does fidelity to this constitutional mandate end there. There must be compliance with the terms of the statute. If it were so, to the extent that there is a deviation, there is a frustration of the legislative will. It is obvious that Congress itself is not in a positiooversee and supervise the actual release of each and every appropriation. That is where the Auditor General comes in. It is responsibility of his office to exact obedience to any law that allows the expenditure of public funds. He serves as the necessary checmake certain that no department of the government, especially its main spending arm, the Executive, exceeds the statutory limits of appropriations to which it is entitled. That is the purpose and end calling for the creation of such an office, certainly not the enforcemencriminal statutes. . . It could be that appellants were not completely oblivious to the force of the above observations. They thereforeseek to lend plausibility to their contention with the reminder that there is likewise included in the constitutional provision in question task incumbent on the Auditor General to "bring to the attention of the proper administrative officer expenditures of funds or propewhich, in his opinion, are irregular, unnecessary, excessive, or extravagant." From which, by a process of construction rather latitudina

n character, they would imply that on the Auditor General alone rests the determination of whether or not criminal liability is incurredany anomaly discovered in the course of his audit or examination. Such a conclusion is at war with the controlling doctrine. As construeGuevara v. Gimenez, at most such a duty goes no further then requiring him to call the attention of the proper administrative officer ofexistence of such a situation but does not even extend to the power "to refuse and disapprove payment of such expenditures, . . ." Mess then could it justify the assertion devoid of any legal justification that even the ascertainment of any possible criminal liabilitikewise a part and parcel of such constitutional competence of the Auditor General. How, then, can it be said that their plea is ther

strengthened?

2. ID.; ID.; ID.; NEITHER DOES THE PRELIMINARY INVESTIGATION RUN COUNTER TO THE LAW THAT ACCOUNTS ONCE FINALLY SETTSHALL IN NO CASE BE OPENED OR REVIEWED. — There is likewise an invocation by appellants of alleged statutory support for tuntenable view. It is likewise in vain. All that appellants have to go on is the concluding paragraph of Section 657 of the ReviAdministrative Code: "Accounts once finally settled shall in no case be opened or reviewed except as herein provided." The paragrmmediately preceding should have disabused the minds of appellants of any cause for optimism. All that it provides for is that in case

settled account "appears to be infected with fraud, collusion or error of calculation or when new and material evidence is discovered, Auditor General may, within three years after original settlement, open such account, and after a reasonable time for his replyappearance. may certify thereon a new balance." The official given the opportunity for a reply or appearance is the provincial auditorunder the first paragraph of this particular section, the Auditor General at any time before the expiration of three years after the makinany settlement by a provincial auditor, may, of his own motion, review and revise the same and certify a new balance. Nowhere doeappear that such a statutory grant of authority of the Auditor General to open revised settled accounts carries with it the powedetermine who may be prosecuted in the event that in the preparation thereof a crime has been committed. The conclusive effect offinality of his decision on the executive branch of the government thus relates solely to the administrative aspects of the matter.

3. REMEDIAL LAW; PROHIBITION AND INJUNCTION DO NOT LIE TO RESTRAIN CRIMINAL PROSECUTION; REASON. — The third assigned eby appellants would find fault with the lower court’s reliance on the well-settled doctrine that as a general principle, no action lies to enfiscals from conducting investigations to ascertain whether an offense has been committed. To demonstrate its equally ground

character, it suffices to refer to Ramos v. Torres, dismissing an original action for prohibition instituted by five of the six petitioners, n



appellants, to cut short further proceedings based on an information accusing them of malversation through falsification of public commercial documents. In the opinion of the present Chief Justice, it is emphatically affirmed: "Upon a review of the record, we satisfied that petitioners herein have not established their right to the writ prayed for. Indeed, it is well-settled that, as a matter of genrule, the writ of prohibition will not issue to restrain criminal prosecution." An excerpt from the opinion of Justice Sanchez in HernandeAlbano was then quoted. Thus: "Agreeably to the foregoing, a rule — now of long standing and frequent application — was formulated ordinarily criminal prosecution may not be blocked by court prohibition or injunction. Really, if at every turn investigation of a crime wihalted by a court order, the administration of criminal justice will meet with an undue setback. Indeed, the investigative power of the Fmay suffer such a tremendous shrinkage that it may end up in hollow sound rather than as a part and parcel of the machinery of crimjustice." Nor is the accused person thereby left unprotected for, as was noted by the Chief Justice, referring to Gorospe v. Peñafloridacould defend himself from any possible prosecution by establishing that he did not commit the act charged or that the statute or ordina

on which the prosecution is based is invalid or in the event of conviction, he could appeal. While the general rule admits of exceptions,showing has been made that petitioners can appropriately invoke them.

D E C I S I O N

FERNANDO, J.:

A constitutional question with an element of novelty is raised in this appeal from a lower court order dismissing an action for certiorari prohibition against the then respondent Fiscal of Rizal, Benjamin H. Aquino, to prevent him from conducting a preliminary investigation.whether there is an encroachment on the constitutional prerogatives of the Auditor General if, after the final approval of certain vouch

by him without an appeal being made, an inquiry by a provincial fiscal to determine whether criminal liability for malversation throfalsification of public, official and commercial documents based thereon could lawfully be conducted. The lower court answered thacould validly be undertaken. We agree that a prosecutor could, without offending the constitutional grant of authority to the AudGeneral, do so. We therefore affirm.

n the certiorari and prohibition proceeding filed with the lower court on June 6, 1967, Petitioners, 1 now appellants, assailed jurisdiction of respondent Benjamin Aquino, then Provincial Fiscal of Rizal, to conduct the preliminary investigation of the allecommission of malversation through falsification of Public, official and commercial documents imputed to them by the other respondthen the Commanding General, Philippine Army, Fort Bonifacio, Rizal, Romeo Espino. The basis for such a petition was that under Constitution, the Auditor General is not only vested with the duty to examine or audit all expenditures of funds of the Government, but to audit or investigate and "bring to the attention of the proper administrative officer expenditures of funds or property which in opinion are irregular, unnecessary, excessive, or extravagant." It is their contention that under the above, it is incumbent on the Aud

General to determine whether criminal responsibility for the anomaly discovered in the course of his audit or examination of the accouies. It was further contended that the decisions of the Auditor General on the correctness of the vouchers on which the alleged offenwere based having become final and irrevocable, not even the courts could substitute its findings. Otherwise the provision of law vouchers, claims or accounts "once finally settled shall in no case be opened or reviewed except as herein provided" would be meaningf the army authorities and Despondent Fiscal were permitted to proceed with the preliminary investigation to determine whether crim

cases could be filed. 2

The above legal objections were brought to the attention of the then respondent Provincial Fiscal by petitioners in a motion to quash wwas denied by him in a resolution of May 23, 1967 on this ground: "The exclusive jurisdiction of the Auditor General on matters now raby respondents refer to auditorial requirements and approval but not to the criminal liability, if any, of the persons involved in an allerregular or anomalous disbursement of public funds. The authority of the Fiscal to investigate whether a criminal act has been commit

or not in the disbursement of public funds, and finally of the Courts to try any person, involved in the alleged malversation of public funnot curtailed or in any way divested by the administrative findings of the Auditor General. To hold otherwise would be to arrogate unto

Office of the Auditor General the power which pertains to the judicial branch of the government." 3

Then came this petition before the lower court, petitioners praying for a judgment annulling the aforesaid resolution of respondProvincial Fiscal denying their motion to quash, rendering judgment that he was without jurisdiction to conduct such preliminnvestigation and prohibiting him from further proceeding on the matter. 4 On November 2, 1967, there was a motion to dismiss

respondent Provincial Fiscal based on the argument that the amounts subject to the criminal cases were not closed and settled accoand that even if they were such, respondent Fiscal could still institute the appropriate criminal action, there being no need focertification by the Auditor General as to any irregularity in the settlement of accounts as an essential element for a criminal prosecutiomalversation cases.

After an opposition was filed by petitioner to the aforesaid motion to dismiss on November 21, 1967, the Dower court, fin an ordeDecember 20, 1967, dismissed the petition. In support of such an order, it was set forth in such order of dismissal: "The Provincial Fisc

only studying whether or not, as complained of, from these accounts or vouchers which have already been passed in audit by the Aud



General or his representatives more than three years ago, there is a crime to be prosecuted in which the petitioners are answerable."was further emphasized: "Were the theory of the petitioners to prevail, then the Auditor General will be arrogating unto himself duwhich pertain to the judicial branch of the government." 6 The last ground on which the plea that the petition be dismissed was sustainethe principle that one "cannot restrain the Fiscal, by means of injunction from prosecuting [this] case . . ." 7

The matter was duly elevated on appeal to this Court on January 3, 1968. The brief for petitioners as appellants was filed on March 6 of year. With the submission of the brief for respondents as appellees on May 3, 1968, the appeal was deemed submitted. As set forth atoutset, there is no legal ground for reversing the lower court.

1. Appellants, in their brief, reiterate their principal argument that the order of the lower court dismissing their petition and thus allow

their investigation by respondent Fiscal to proceed, did amount to an encroachment on the constitutional prerogatives of the AudGeneral. Such a contention lacks merit. It betrays on its face a lack of understanding of the constitutional provision relied upon. The AudGeneral, as noted, is vested with the power to examine, audit and settle all accounts pertaining to the revenues and receipts from whatsource, and to audit, in accordance with law and administrative regulations, all expenditures of funds or property pertaining to or heltrust by the government as well as the provinces or municipalities thereof. 8 That is one thing. The ascertainment of whether a crcommitted and by whom is definitely another.

There is thus a manifest failure on the part of appellants to appreciate correctly the constitutional objective in the conferment of authoon the Auditor General. It is based on the fundamental postulate that in the division of powers, the control over the purse remains withegislative branch. There is the explicit requirement then that there be no expenditure of public funds except in pursuance o

appropriation made by law. 9 There is need, therefore, for an enactment to permit disbursement from the public treasury. Nor does fidto this constitutional mandate end there. There must be compliance with the terms of the statute. If it were not so, to the e xtent that ths a deviation, there is a frustration of the legislative will. It is obvious that Congress itself is not in a position to oversee and supervise

actual release of each and every appropriation. That is where the Auditor General comes in. it is the responsibility of his office to eobedience to any law that allows the expenditure of public funds. He serves as the necessary check to make certain that no departmenthe government, especially its main spending arm, the Executive, exceeds the statutory limits of the appropriations to which it is entitThat is the purpose and end calling for the creation of such an office, certainly not the enforcement of criminal statutes.

So it has been made clear by the then Delegate, later President, Manuel Roxas in the Constitutional Convention of 1934. To the questioto the method or means to determine whether public funds are spent in accordance with the congressional will, this was his answer: "only means provided in our Constitution, as in the constitutions in other countries, is the office of the auditor; therefore, if the auditor check on the Executive, it is not wise to make the auditor depend on the Executive. For another ways, the Executive, if he is ablnfluence the auditor, may prevent the proper checking of the expenditures of the public money." 10 For such a dignitary to live up to s

grave responsibility, he must, according to Delegate Roxas, be independent, not only of the President but even of Congress, even if he wn a true and vital sense fulfilling a task appertaining to it. Thus: "In the United States, while the auditor is appointed by the President w

the advice and consent of the United States Senate, the office is kept as an independent office — independent [of] the Executive ndependent [of] the Legislature, because he has not only to check the accounts of the Executive, but also the accounts of the Legislatu." 11

t could be that appellants were not completely oblivious to the force of the observations. They therefore did seek to lend plausibilittheir contention with the reminder that there is likewise included in the constitutional provision in question the task incumbent on Auditor General to "bring to the attention of the proper administrative officer expenditures of funds for property which, in his opinion,rregular, unnecessary, excessive or extravagant." From which, by a process of construction rather latitudinarian in character, they womply that on the Auditor General alone rests the determination of whether or not criminal liability is incurred for any anomaly discoven the course of his audit or examination. Such a conclusion is at war with the controlling doctrine. As construed in Guevara v. Gimenez,

at most such a duty goes no further then requiring him to call the attention of the proper administrative officer of the existence of sucsituation but does not even extend to the power "to refuse and disapprove payment of such expenditures, . . ." 13 Much less then coujustify the assertion devoid of any legal justification that even the ascertainment of any possible criminal liability is likewise a part

parcel of such constitutional competence of the Auditor General, how, then, can it be said that their plea is hereby strengthened?

There is likewise an invocation by appellants of alleged statutory support for their untenable view. It is likewise in vain. All that appellahave to go on is the concluding paragraph of section 657 of the Revised Administrative Code: "Accounts once finally settled shall in no cbe opened or reviewed except as herein provided." The paragraph immediately preceding should have disabused the minds of appellantany cause for optimism. All that it provides for is that in case any settled account "appears to be infected with fraud, collusion or errocalculation or when new and material evidence is discovered, the Auditor General may, within three years after original settlement, osuch account, and after a reasonable time for his reply or appearance, may certify thereon a new balance." The official given opportunity for a reply or appearance is the provincial auditor, for under the first paragraph of this particular section, the Auditor Genat any time before the expiration of three years after the making of any settlement by a provincial auditor, may, of his own motion, revand revise the same and certify a new balance. Nowhere does it appear that such a statutory grant of authority of the Auditor Generaopen revised settled accounts carries with it the power to determine who may be prosecuted in the event that in the preparati on there



crime has been committed. The conclusive effect of the finality of his decision on the executive branch of the government thus relasolely to the administrative aspect of the matter. 14

From the constitutional, no less than the statutory standpoint then, this claim of appellants finds no support. It has nothing but noveltcall for any attention being paid to it. It is singularly unpersuasive. To repeat, it would be to stretch to unwarranted limi ts the constitutipower thus conferred on the Auditor General to accede to such a plea. Nothing is better settled than that, broad and comprehensive s, it does not include a participation in the investigation of charges to determine whether or not a criminal prosecution shouldnstituted. 15 Thus, the first two errors of the appellants which would impugn the order of dismissal for reaching a similar conclusion

disposed of.

2. The third assigned error by appellants would find fault with the lower court’s reliance on the well -settled doctrine that as a genprinciple, no action lies to enjoin fiscals from conducting investigations to ascertain whether an offense has been committed.demonstrate its equally groundless character, it suffices to refer to Ramos v. Torres, 16 dismissing an original action for prohibinstituted by five of the six petitioners, now appellants, 17 to cut short further proceedings based on an information accusing them

malversation through falsification of public and commercial documents. In the opinion of the present Chief Justice, it is emphaticaffirmed: "Upon a review of the record, we are satisfied that petitioners herein have not established their right to the writ prayed ndeed, it is well-settled that, as a matter of general rule, the writ of prohibition will not issue to retrain criminal prosecution." 18

excerpt from the opinion of Justice Sanchez in Hernandez v. Albano 19 was then quoted. Thus: "Agreeably to the foregoing, a rule — noong standing and frequent application — was formulated that ordinarily criminal prosecution may not be blocked by court prohibitionjunction. Really, if at every turn investigation of a crime will be halted by a court order, the administration of criminal justice will m

with an undue setback. Indeed, the investigative power of the Fiscal may suffer such a tremendous shrinkage that it may end up in holsound rather than as a part and parcel of the machinery of criminal justice." 20 Nor is the accused person hereby left unprotected forwas noted by the Chief Justice, referring to Gorospe v. Peñaflorida, 21 he could defend himself from any possible prosecution

establishing that he did not commit the act charged or that the statute or ordinance on which the prosecution is based is invalid or in event of conviction, he could appeal. While the general rule admits of exceptions, no showing has been made that petitioners appropriately invoke them. As they failed in their previous action of prohibition in Ramos v. Torres, so they must now.

WHEREFORE, the appealed order of the lower court of December 20, 1967 dismissing the petitioners’ action for certiorari and prohibitio

affirmed. With costs against Petitioners-Appellants.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Teehankee, Villamor and Makasiar, JJ., concur.

Castro and Barredo, JJ., did not take part.

G.R. No. 100284 October 13, 1993

NARCISO E. MAMARIL, petitioner,vs.HON. EUFEMIO C. DOMINGO, In his capacity as Chairman, Commission on Audit (COA), respondent.

Eustacia Ventura Frando for petitioner.

The Solicitor General for respondent.

QUIASON, J.:

This is petition for certiorari under Section 7 of Article IX of the Constitution and Rule 65 of the Revised Rules of Court to set aside Decision No. 1614 of the Commission on Audit (COA), finding petitioner negligent in the Performance of his duties and holding him liajointly and severally, with the agency head of the Land Transportation Office (LTO) at San Pablo City for the audit disallowa nce in the tamount of P44,515.90 (Rollo, p. 16).

Petitioner was formerly an Evaluator/Computer of the Land Transportation Office (LTO) at its San Pablo City Branch. In the course of performance of his duties, he committed errors in his evaluation and computation, resulting in the under collection of registration, liceand other miscellaneous fees and penalties.

Petitioner availed of the Early Retirement Program under RA 6683. As a result of the decision of the COA, holding that the amounP44,515.90 be withheld from petitioners terminal leave pay other than his retirement gratuity, he has not received in full the benefits dhim from his retirement.





Petitioner claims that the mistakes he made in his evaluation and computation were not done with malice or gross negligence amountinbad faith (Rollo, pp. 6-7).

The repeated mistakes made by petitioner in his work cast doubts on his bona fides. Nonetheless, if there are errors or mistakes in performance of a public officer of his duties which result in an under collection of fees due to the Government, said officer becomes civiable, regardless of whether he acted without malice or gross negligence.

Petitioner also questions the correctness of the disallowances (Annex "C", Rollo, p. 19-28) which allegedly were never explained to himclaims that the Auditor, who issued the Certificate Settlement and Balances and Notices of Suspension, may not be aware of the differcirculars on the registration of vehicles, resulting in the erroneous classification of the vehicles. As an example, he stated that a diesel-

motor vehicle could have been considered by the Auditor as gas-fed motor vehicle (Rollo, pp. 9-10).

There is no showing that petitioner had asked the Auditor to explain the disallowances. Neither did he appeal such disallowances toCOA. Under P.D. No. 1445 (1978), petitioner has the right to appeal disallowances by an Auditor. Section 48 of said law provides:

Appeal from decision of auditor. — Any person aggrieved by the decision of an auditor of any government agency in the settlement ofaccount or claim may within six months from receipt of a copy of the decision appeal in writing to the Commission.

The correctness of the disallowances involves a question of fact, which we are not in a position to review, particularly where petitionernot specify the items wherein the Auditor allegedly made an erroneous classification.

As to petitioner's claim that because of respondent's Decision No. 1614, he "has not, to date, received in full his gratuity/retirement p(Petition, p. 2; Rollo, p. 6), it should be made clear that the COA ordered the withholding of the amount of P44,515.90 "from the term

eave or any other amount due Mr. Mamaril except, his retirement gratuity pay" (Annex "A ", Rollo, p. 16).

Petitioner should call the attention of the LTO agency at San Pablo City to compel the private parties concerned to pay their deficienciepenalties so that he can request for the release of the amounts from his withheld benefits corresponding to the amounts collected fromprivate parties.

WHEREFORE, the decision of respondent is AFFIRMED and the petition is DISMISSED.

SO ORDERED.

G.R. No. 92279 June 18, 1992

EDMUNDO C. SAMBELI, doing business as ECS ENTERPRISES, petitioners,vs.PROVINCE OF ISABELA, PROVINCIAL TREASURER OF ISABELA and COMMISSION ON AUDIT, respondents.

PARAS, J.:

The instant petition seeks to annul and set aside the ruling of respondent Commission on Audit (COA) affirming the action of respondProvincial Auditor of Isabela which:

(a) withheld the payment to petitioner of the amount of P380,400.10, representing the unpaid balance of the price of 300 unitwheelbarrow and 873 pieces of shovel;

(b) required the refund of the amount of P195,893.10 representing the overpayment to petitioner for the same items. (p. 35, Rollo

The pertinent background facts are uncontroverted.

On October 2, 1987, an agreement was entered into by and between the Province of Isabela and ECS Enterprises, herein petitioner, for purchase of 300 units of wheelbarrows, 837 pieces of shovels and 1 set of radio communication equipment. Out of the items todelivered, a partial delivery of 150 units of wheelbarrows and 419 pieces of shovels were made on November 11, 1987 for the total pricP380,538.60. The Provincial Auditor allowed the payment of only 50% or P190,338.20 "pending receipt of the reply to the query to the PEvaluation Division, COA, Technical Staff Office, Quezon City."(Annex "N" Petition, p. 25 Rollo)



A second delivery of 150 units of wheelbarrows and 418 pieces of shovels was made on December 1, 1987, and payment of P190,200.0050% of P380,400.00 was allowed by the Provincial Auditor, bringing the total payments made to P380,538.20 or 50% of P761,077.20 total cost of 300 units of wheelbarrows and 837 pieces of shovels).

Based on the findings of the Price Evaluation Division, COA Technical Service Office, Quezon City, the Provincial Auditor advised Provincial Treasurer in his letter dated February 20, 1988 that an overprice in the total amount of P619,042.20 exists out of the total pof P761,077.20 offered by ECS Enterprises or an overpayment of P195,893.10. The said findings of the Price Evaluation Division hereinbelow quoted as follows:

A comparison between the purchase price of the Province and the findings of the Price Evaluation Division is presented hereunder show

the difference:

Purchase Price Price Hvs. Div.tem/Description Unit Price Total Unit Price Total Difference

1) 200 units P1,768.00 P530,400.00 P320.00 P96,000 P434,400.002) 837 pcs.shovels 230.00 230,676.40 55.00 46,035 184,641.40———— ———— ————— Total P761,076.40 P142,035 P619,041.40========= ======= =========

Payment of Three Hundred Eighty Thousand Five Hundred Thirty Eight and 60/100 Pesos Only (P380,538.60) was made on the strength

the certification issued by the Bureau of Supply Coordination that the prices are reasonable. A difference of Two Hundred Thirty EThousand Five Hundred Three and 60/100 PESOS Only (P238,503,60) between the amount paid of Three Hundred Eighty Thousand FHundred Thirty Eight and 60/100 Pesos Only (P380,538,60) and the total price due if computed on the Price Evaluation Division canvManila Price of One Hundred Forty Two Thousand Thirty Five and 00/100 Pesos Only (P142,035.00)

f thirty percent (30%) equivalent to Forty Two Thousand Six Hundred Ten and 50/100 (P42,610.50) of the Manila Price total will be allowfor handling, and freight expenses to be deducted from P238,503.60, still an overpayment of One Hundred Ninety Five Thousand EHundred Ninety Three and 10/100 Pesos Only (P195,893,10) still exists.

t is recommended that future claims of ECS Enterprises be withheld and applied to the refund for overpayment. (Annex J, Petition, pp. 1124, Rollo)

The President/General Manager of ECS Enterprises in his letter dated April 1, 1988 to the Provincial Treasurer made no comment on overpricing but instead proposed 10% deduction on the unpaid balance.

The Provincial auditor forwarded the matter to the COA Regional Director who formally endorsed the stand of the Provincial Auditorfollows:

n view of the foregoing, we favorably endorse the stand of the Provincial Auditor in his letter to the Provincial Treasurer Ilagan, Isabela the total claim of ECS Enterprises in the total amount of P761,077.20 is overpriced by P619,041.40 or a refund of P195,893.10 mustmade by the supplier out of the P380,538.60 total payments already made by the Province of Isabela as presented by the Provincial Audn the preceding indorsement. (Annex N, Petition; p. 125, Rollo)

The Regional Director further made the following findings:

the submitted documents disclosed the following deficiencies:

1. The contract for the purchase of 300 units of wheelbarrows and 837 pieces of shovels was entered into by and betweenProvince of Isabela and ECS Enterprises without the prior necessity of a public bidding to determine the most advantageous pr ices;

2. The following conditions among others, set in the 2nd indorsement dated December 10, 1987 of Mr. David Rubio, Director, SuCoordination Office to the Provincial Governor, Ilagan, Isabela were not adhered to:

(a) the agency concerned shall negotiate further for lower prices such terms and conditions advantageous to the government; and

(b) substitute offer/s at lower prices shall be given due consideration upon appreciation of their quality and effectiveness. (p.Rollo)



ECS Enterprises appealed to the respondent Commission on Audit. In a letter dated December 12, 1989, the said Commission deniedappeal and affirmed the position of the Provincial Auditor and the COA Regional Director, as follows:

This has reference to your appeal in behalf of ECS Enterprises from the action of the Provincial Auditor of Isabela in withholding payment of P380,400.60 representing the unpaid balance of the price of 300 units of wheelbarrows and 837 pieces of shovels purchasethe Province of Isabela from your company.

Relative thereto, we invite your attention to the letter of this Commission to then Governor Melanio T. Singson of Isabela, dated Augus1988, copy attached, confirming the action taken by the Provincial Auditor in demanding the refund of the excess payment made by Provincial Treasurer of Isabela to your Company for the reasons stated therein.

Upon a circumspect evaluation of the grounds relied upon, your within appeal, this Commission finds the same to be devoid of any meThe price quotation of the Supply Coordination Office provides that the prices set therein are authorized ceiling or purchasing prices. It be deduced therefrom that the prices to be agreed upon shall not exceed said amount, thereby signifying that negotiations for a loprice may be resorted to in the best interest of the government. Moreover, the action taken by the Provincial Auditor and the COA RegioDirector, as representatives of the Commission on Audit, is in accordance with the law and in pursuance of the mandate of the Constituwhich vests in this Commission the exclusive authority "to promulgate accounting and auditing rules and regulations, including thosethe prevention and disallowance of irregular, unnecessary, excessive, extravagant or unconscionable expenditures, or uses of governmfunds and properties." (Art, IX-D, Sec. 2(2) 1987 Constitution).

Accordingly, this Commission regrets to dismiss, as it hereby dismisses, your herein appeal for lack of merit. (Annex R, Petition, pp. 126-Rollo).

Hence, the present petition.

Petitioner assails the ruling of the COA as not valid. It contends that the contract of sale has not only been perfected between the Proviof Isabela and petitioner but delivery has been made by it with the corresponding partial payment by the Province of Isabela. Thus, allegedly incumbent upon COA to authorize the payment of the balance because to act otherwise will constitute an impairment of contr

We reject petitioner's contention.

n the exercises of the regulatory power vested upon it by the Constitution, the Commission on Audit adheres to the policy tgovernment funds and property should be fully protected and conserved and that irregular, unnecessary, excessive or extravagexpenditures or uses of such funds and property should be prevented. On the proposition that improper or wasteful spending of pufunds or immoral use of government property, for being highly irregular or unnecessary, or scandalously excessive or extravagant, offe

the sovereign people's will, it behooves the Commission on Audit to put a stop thereto. (Tantuico, State Audit Code Philippines, p. 235)

n the cases of Danville Maritime, Inc. v. Commission on Audit, 175 SCRA 701 (1989) and D.M. Consunji Inc. v. Commission on Audit, SCRA 549 (1991), We defined the role of the COA in this wise:

. . . No less than the Constitution has ordained that the COA shall have exclusive authority to define the scope of its audit and examinatestablish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including thosethe prevention and disallowance of irregular, unnecessary excessive, extravagant or unconscionable expenditures or use of governmfunds and properties. (Art. IX D, Sec. 2 (2) 1987 Constitution of the Philippines) (emphasis supplied)

ndeed, not only is the Commission on Audit (COA) vested with the power and authority, but is also charged with the duty to examine, aand settle all accounts pertaining to . . . the expenditure or uses of funds . . . owned by or pertaining to, the Government or any ofsubdivisions, agencies or instrumentalities (Article IX (D-1) Section 2(1), 1987 Constitution). That authority extends to the accounts o

persons respecting funds or properties received or held by them in any accountable capacity. (Section 26, P.D. No. 1445). In the exercisets jurisdiction, it determines whether or not the fiscal responsibility that rests directly with the head of the government agency has b

properly and effectively discharged (Section 25 (1) ibid), and whether or not there has been loss or wastage of government resources. also empowered to review and evaluate contracts. (Section 18 (4), ibid.). And, after an audit has been made, its auditors issue a certificof settlement to each officer whose account has been audited and settled in whole or in part, stating the balances found due thereon acertified, and the charges or differences arising from the settlement by reason of disallowances, charges or suspensions. (Sec. 82, ib(Dingcong v. Guingona 162 SCRA 782)

VIEWED in this light, the disallowance made by the respondent Commission on Audit is not without any Constitutional and legal basis. therefore, affirm the same.

WHEREFORE, for lack of merit, the petition is DISMISSED. No costs.



SO ORDERED.

G.R. No. 98355 March 2, 1994

HON. TOMAS R, OSMEÑA, petitioner,vs.COMMISSION ON AUDIT AND HONORABLE EUFEMIO C. DOMINGO, respondents.

Office of the City Attorney for petitioner.

The Solicitor General for respondents.

NOCON, J.:

Sometime in 1985 the City of Cebu decided to construct a modern abattoir. For this project, the City Treasurer, Ricardo Pestano, issuecertificate of availability of funds dated April 30, 1985, in the amount of FIVE MILLION FOUR HUNDRED NINETEEN THOUSAND AND OHUNDRED EIGHTY (P5,419,180.00) PESOS, specifically "for the construction of Cebu City Abbatoir (sic)." 1 After a public bidding, H. FraConstruction Company, Inc. (HFCCI) was awarded to do the construction of the abattoir. Thus, the City of Cebu, through its Mayor, RonR. Duterte, entered into a contract with HFCCI, the terms of which are as follows:

WHEREAS, the contract cost for this project is EIGHT MILLION THREE HUNDRED SIXTY-EIGHT THOUSAND NINE HUND

TWENTY(P8,368,920.00) PESOS;

xxx xxx xxx

WHEREAS, the City treasurer of Cebu City certified the availability of funds for the first installment due to the CONTRACTOR in the amoof TWO MILLION NINETY TWO THOUSAND TWO HUNDRED THIRTY (P2,092,230.00) PESOS, which is to be due and payable ucertification of the City Engineer, concurred in by the Project Management Staff that the project substantially completed;

WHEREAS, the CITY OF CEBU shall include the Budget for calendar year 1986, the amount of SIX MILLION TWO HUNDRED SEVENTYTHOUSAND SIX HUNDRED NINETY (P6,276,690.00) PESOS which represents the second, third and final installment payments due to CONTRACTOR. 2

On March 13, 1986, Sen. John H. Osmeña, then Officer-In-Charge of the City of Cebu, ordered the suspension of the project and reviewthe contract by the COA. He also wrote HFCCI asking them to account for the value of their progress. On April 24, 1986, HFCCI claimed amount of TWO MILLION ONE HUNDRED FORTY TWO THOUSAND NINE HUNDRED SIXTY FOUR AND 29/100 (P2,142,964.29) PESOS asvalue of the work accomplished.

Unable to collect the said amount after so many demands, HFCCI instituted a civil action, 3 dated May 21, 1987 against the City of Ceburecovery of investment and damages.

n its answer dated June 5, 1987, the City of Cebu, while admitting having entered into a contract with HFCCI, alleged that the contracentered into was null and void as declared by the Commission on Audit in its 2nd Indorsement dated September 4, 1986. Therefwhatever amount is due to HFCCI is to the sole liability of the officer or officers who entered into the said contract. 4

Nevertheless, on December 15, 1988, the City of Cebu, through its Mayor, Tomas R. Osmeña, entered into a compromise agreem

approved by the court, to the effect that as a full and final settlement to the claim of HFCCI, the City of Cebu shall pay the amount of OMILLION FIVE HUNDRED THOUSAND (P1,500,000.00) PESOS.

On the strength of the Court's Order dated March 3, 1989 the Provincial Deputy Sheriff, RTC, Branch 5, Cebu City was ordered on Marc1989, to serve a writ of execution against the City of Cebu through its Mayor, Tomas R. Osmeña. Thus, the amount of P1,500,000.00 P15,052.00, as lawful fees, were garnished from the City's funds deposited in the Philippine NationalBank. 5

The trial court's judgment based on the compromise agreement was referred to the COA's Regional Director, who in turn indorsed same to the Chairman of the COA. In its 3rd Indorsement dated May 2, 1989, the COA ruled that:



t may not be disputed that the contract for the construction of the Cebu City Abattoir was declared void in a 2nd Indorsement daSeptember 4, 1986, of this Commission. And since no appeal appears to have been taken thereon, said decision became final.

Consequently, "if a compromise is based upon an antecedent claim which is undisputedly and undoubtedly illegal, the compromise mayconsidered invalid on the ground of illegality as well as lack of consideration." (Sec. 29, 15 Am. Jur 2d) Besides the compromise agreementered into by the City of Cebu with H. Franco Construction Co., Inc., after the contract by and between them had been declared voidthis Commission, is a circumvention of the constitutional provision that the party aggrieved by any decision, order or ruling of Commission may within thirty (30) days from receipt of a copy thereof appeal on certiorari to the Supreme Court (Sec. 2-2, Art. XII-D,1Constitution; Sec. 7, Art, IX-A, 1987 Constitution).

Under the circumstances, this Commission concurs in the view expressed by that Office that the expenditure involved would be personal liability of the officer directly responsible for its incurrence (Sec. 103, P.D. No. 1445). 6

Petitioner's request for reconsideration of the above ruling was denied in COA's 5th Indorsement dated January 23, 1991, 7 hence petition, with the following arguments:

1) the decision of the Public Respondent as contained in the 2nd Indorsement dated September 4, 1986 is null and void for habeen made without, in excess of jurisdiction or with grave abuse of discretion;

2) that Public Respondent's decision has never become final because it was made without, in excess of jurisdiction, or with grabuse of discretion. 8

Petitioner argues that the decision of COA invalidating the contract between the City of Cebu and HFCCI was void since it was alreexecuted and fulfilled. Petitioner further stresses that COA has no authority to declare a contract already executed void. And since the ndorsement is a nullity, it never attained finality.

The petition is devoid of merit.

The Commission on Audit has the power, authority and duty to examine, audit and settle all accounts pertaining to revenue and receiptand expenditures or uses of funds and property, owned of held in trust by, or pertaining to, the government, or any of its subdivisioagencies or instrumentalities. 9

The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the expenditure of public funds shall be entento unless there is an appropriation therefor 10 and the proper accounting official of the agency concerned shall have certified to

officer entering into the obligation that funds have been duly appropriated for the purpose and the amount necessary to cover proposed contract for the current year is available for expenditure on account thereof. 11 (Emphasis supplied) Any contract entered contrary to the foregoing requirements shall be VOID. 12

Clearly then, the contract entered into by the former Mayor Duterte was void from the very beginning since the agreed cost for the pro(P8,368,920.00) was way beyond the appropriated amount (P5,419,180.00) as certified by the City Treasurer. Hence, the contract properly declared void and unenforceable in COA's 2nd Indorsement, dated September 4, 1986. The COA declared and we agree, that:

The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and mandatory. Fund availability is, as it has alwbeen, an indispensable prerequisite to the execution of any government contract involving the expenditure of public funds bygovernment agencies at all levels. Such contracts are not to be considered as final or binding unless such certification as to funds availabs issued (Letter of Instruction No. 767, s. 1978). Antecedent of advance appropriation is thus essential to government liability on contr

(Zobel v. City of Manila, 47 Phil. 169). This contract being violative of the legal requirements aforequoted, the same contravenes Sec. 8

PD 1445 and is null and void by virtue of Sec. 87. 13

As a matter of fact, the City of Cebu relied on the above pronouncement and interposed the same as its affirmative defense, 14 so mucthat petitioner cannot now assert that it was void having been issued in excess of COA's jurisdiction. A party cannot invoke the jurisdictof a court or an administrative body to secure affirmative relief against his opponent and after obtaining or failing to obtain such rerepudiate or question that same jurisdiction. It is not right for a party who has affirmed and invoked the jurisdiction of a court iparticular matter to secure an affirmative relief, to afterwards deny the same jurisdiction to escape a penalty. 15

Besides, neither the petitioner nor HFCCI questioned the ruling of COA declaring the invalidity of the abattoir contract, thereby resultints finality even before the civil case was instituted. Petitioner could have brought the case t o the Supreme Court on a petition for certio

within thirty days from receipt of a copy of the COA decision in the manner provided by law and the Rules of Court. 16 A decision ofCommission or of any of its Auditor not appealed within the period provided by law, shall be final and executory. 17



Petitioner cannot hide behind the argument that the payment was made in compliance with the trial court's judgment. As correctly staby the Solicitor General:

Since petitioner and HFCCI knew of the absolute invalidity of said Abattoir Contract, the Compromise Agreement relative to the petitionobligation resulting from said Abattoir contract is also void and in existent and the decision based on said Compromise Agreemenunenforceable against the City of Cebu. (Art. 1422, Civil Code of the Philippines). 18

The trial court's decision based on the compromise agreement could not have ratified a contract which is void ab initio. Consequently settlement of the supposed obligation of the City of Cebu arising out of a void contract becomes a personal liability of petitioner whdirectly responsible therefor. 19

Neither can petitioner rely on the principle of Quantum Meruit. Quantum Meruit is based on justice and equity, to compensate a propor benefit received if restitution is equitable and if such action involves no violation, frustration or opposition to public policy. In present case, however, the payment due to HFCCI was due to the compromise agreement which in turn was made in pursuance tsupposed abattoir contract, which is a void contract. Furthermore, there was no evidence presented as to the extent of work accomplisby HFCCI as to substantiate the amount stipulated in the compromise agreement. Finally, as observed by the Solicitor General:

n any event, it is respectfully submitted that since petitioner's act in entering into said Compromise Agreement . . . came after purespondent had voided petitioner's abattoir contract (he) may not be allowed to evade the legal sanctions resulting from his failurcomply with the law's safeguards against undue expenditures of public funds. 20

Premises considered, the Compromise Agreement entered into between the City of Cebu, through its Mayor, Tomas Osmeña is void bemerely a derivative of a previously void Abattoir Contract, and thus becomes a personal liability of the officer who entered into it pursu

to Sec. 87 & 103 of P.D. 1445.

WHEREFORE, petition is hereby DISMISSED for lack of merit.

SO ORDERED.

G.R. No. 103309 November 27, 1992

BENITO M. BUSTAMANTE petitioner,

vs.

COMMISSIONER ON AUDIT, and MARTHA ROXANA T. CABURIAN, respondents.

CAMPOS, JR. J.:

This petition for certiorari with Preliminary Injunction seeks to annul and set aside the Decision of the respondent Commissioner on A(hereinafter referred to as the Commission), dated February 5, 1991 which denied due course to the appeal of petitioner from disallowance by Regional Auditor Martha Roxana Caburian of petitioner's claim for transportation allowance for the period coveringmonth of January 1989 in the amount of P1,250.00.

Petitioner is the Regional Legal Counsel of the National Power Corporation (NPC) for the Northern Luzon Regional Center covering provinces of Rizal up to Batanes. As such he was issued a government vehicle with plate number SCC 387. Pursuant to NPC polic

reflected in the Board Resolution No. 81-95 authorizing the monthly disbursement of transportation allowance, the petitioner, in addito the use of government vehicle, claimed his transportation allowance for the month of January 1989. On May 31, 1990, the petitioreceived an Auditor's Notice to Person Liable dated April 17, 1990 from respondent Regional Auditor Martha Roxana Caburian disallowP1,250.00 representing aforesaid transportation allowance.

n a letter to the said Regional Auditor dated June 18, 1990, the petitioner moved for reconsideration of the disallowance of the claimtransportation allowance. The Regional Auditor denied petitioner's motion in a letter dated June 27, 1990. Petitioner appealed this deto the Commission on Audit at Quezon City, which denied do due course.

Hence this petition.

The issue to be resolved is whether such denial to give due course to the appeal of herein petitioner constitutes grave abuse of discre

amounting to lack of jurisdiction.





COMMISSION ON AUDIT, SOFRONIO B. URSAL, MARCOS S. SEGARRA, LEON J. PILAR, JR., and JOSE M. AGUSTIN, respondents.

Victoriano V. Orocio for and in his own behalf.

DAVIDE, JR., J.:

On 25 May 1982, an accident occurred at the Malaya Thermal Plant of the National Power Corporation (NPC). Based on the accident repof Robinson D. Mapili and Ildefonso I. Barrera dated 27 May 1982, 1 tube leaks on HPH 5B were confirmed at 2:30 o'clock in the mornin

25 May 1982. From the time of such confirmation until 8:00 o'clock that morning, the system was drained and prepared for repaimechanical maintenance personnel. By 8:45 o'clock, the system was declared safe for repair. Work thus progressed that same mornuntil 11:10 o'clock, when the plug from the leaking tube gave way, thereby releasing steam and hot water which hit two (2) of employees working on the tube leak.

Ernesto Pumaloy, an NPC employee, suffered 1st and 2nd degree burns on the lower part of his body while Domingo Abodizo, a casemployee of O.P. Landrito's General Services (OPLGS), a janitorial contractor of the NPC, assigned to the Maintenance Section, sufferedand 2nd degree burns on nearly seventy percent (70%) of his body. The injured personnel were brought to the Tanay General Hospitatreatment and were later transferred to Meralco's J.F. Cotton Hospital. Total hospitalization expenses for the treatment of DomiAbodizo reached P53,802.26.

The NPC initially advanced this amount by setting it up as an account receivable from OPLGS deducted on a staggered basis from the lattbillings against NPC until the same was fully satisfied.

Subsequently, OPLGS, through its manager Ofelia Landrito, in a letter to Mr. Larry S. Gaerlan, Vice-President, Human Resources & GenServices (VP-HRGS) NPC, dated 30 August 1982, 2 requested for a refund of the total amount deducted from their billings represenpayment of the advances made by the NPC. This request was reiterated in a follow-up letter dated 6 September 1982. 3 In Memorandum to the VP-HRGS dated 14 September 1982, Atty. C.Q. Crucillo, Assistant Chief Legal Counsel of the NPC, recommenfavorable action on the request of the contractor. 4 This was forwarded to the Acting Manager, Metro Manila Regional Center (MMRCthe NPC. 5 In turn, this opinion was referred to the General Counsel of the NPC for comment. 6 At that time, petitioner, then Legal ServChief D of the NPC, was designated by the Manager of the Legal Counseling Division of the NPC, who was to attend and participate Management Convocation scheduled for 30 September to 2 October 1992, as officer-in-charge of the Office of the General Counsel for period. 7 In a memorandum dated 1 October 1982, petitioner, as officer-in-charge, recommended favorable action on OPLGS' requessupport whereof he stated:

xxx xxx xxx

n brief, it is posited in the Memorandum that under Article 2176 of the Civil Code of the Philippines and pursuant to the doctrine of psa loquitor" (sic) (the thing speaks for itself) and citing the case of Bernabe Africa, et al. vs. Caltex, et al., L-12986, March 31, 1966, it m

be reasonably inferred that the incident causing injuries to Mr. Abodizo happened for want of care on the part of the Metro MaRegional Center (MMRC) crew, rendering NPC, as their employer and owner of the Malaya Thermal Plant liable for damages sustainedMr. Abodizo. It is further contended that under Article 2179 of the New Civil Code, NPC may not be liable for such damages only if Abodizo's own negligence was the immediate and proximate cause of his injury, which is certainly not so in the instant case.

After a review of the findings stated in the said memorandum against the applicable laws and jurisprudence on the matter, we findrequest of OPLGS legally in order and should, therefore, be given due course. 8

xxx xxx xxx

Thereupon, the amount for the hospitalization expenses was refunded to the contractor OPLGS. In Certificate of Settlement and Balan(CSB) No. 01-04-83 prepared by respondent Jose M. Agustin, Unit Auditor of the Commission on Audit (COA) assigned to the NPC-MRRC30 July 1989, 9 the refund of the hospitalization expenses for Domingo Abodizo was disallowed for "[u]nder the NPC-O.P. Landrito contthere is no employer-employee relationship between the Corporation and the latter's employees." Hence, the NPC is not answerablesuch expenses. The following employees were made liable for the disallowances: Mr. M.V. Villafuerte (Approving Authority) — primiable; E. Camama and P. Gajasan (Management's examiners) — secondarily and jointly liable; L. Hermosura (Chief Accountant) — primiable.

General Counsel Marcelino C. Ilao of the NPC, in his Memorandum of 6 September 1984, asked for a reconsideration of the aforedisallowance, stressing that:

xxx xxx xxx



A review of the legal opinion (Memorandum dated October 1, 1982 of the Officer-in-Charge of the Office of the General Counsel) forOfficer-in-Charge, MMRC, which was the basis for the payment of the amount being disallowed, admits the non-existence of employemployee relationship between NPC and Mr. Abodizo, employee of O.P. Landrito. However, the legal opinion premises the legality of request for payment on the basis of quasi-delict, more particularly, the negligence and/or want of care on the part of the MMRC cwhich resulted to the injuries sustained by Mr. Abodizo. Obligation arise (sic) not only from contracts but also from quasi-delicts, . . . 10

xxx xxx xxx

n his memorandum dated 9 January 1985, 11 respondent Agustin informed General Counsel Ilao of the NPC that he is adopting his st

contained in his memorandum to the COA Regional Director dated 9 October 1984 as the answer to the request for reconsideration. In atter memorandum, he maintains that:

xxx xxx xxx

. . . there being no pre-existing contractual relation between the Corporation and the subject employee, the former is not liable for damages sustained by the latter. We maintain that while quasi-delicts could be a source of obligation, the fault or negligence of the pafrom whom damages is being recovered must first be proven. . . .

The opinion rendered by the NPC Legal Office clearly concedes lack of proof of negligence on the part of the NPC personnel undertakingrepair work or on the part of the Corporation . . . Moreover, the negligence of the crew does not make the Corporation automaticand/or equally negligent.

We further contend that it is not for the NPC Legal Office to declare the Corporation negligent and admit liability. It could have beebetter decision if the matter was left to a competent court to determine. 12

xxx xxx xxx

The COA Regional Director, herein respondent Leon J. Pilar, Jr., in a Memorandum dated 3 December 1984, confirmed the disallowance held that the persons determined to be liable should be directed to immediately refund the amount disallowed and/or the proper offibe directed to retain any money due them in satisfaction thereof. 13

General Counsel Ilao submitted a second request for reconsideration on 14 February 1985. 14 This request justifies the legal opintendered based on Section 15-A of R.A. No. 6395 (the NPC charter), as amended, which provides that ". . . all legal matters shall be handby the General Counsel of the Corporation . . ."

n the first indorsement dated 22 March 1985, 15 respondent Agustin submitted the request to the Chairman of respondent COA with claim that his findings on the said disallowance have already been confirmed by the Regional Director, NCR. In a second indorsement da2 April 1985, 16 respondent Sofronio B. Ursal, Manager of the Corporate Audit Office of respondent COA, referred for comment andrecommendation to the Auditor, NPC, the request for reconsideration. In a third indorsement dated 24 April 1985, 17 respondent MarSegarra, Corporate Auditor of COA, returned the second indorsement to respondent Ursal informing the latter that he concurs withcomment/opinion of respondent Agustin contained in the 1st indorsement of 22 March 1985. In his 4th indorsement dated 30 May 118 respondent Ursal, expressing his concurrence with the disallowance, referred to the COA's General Counsel for an opinion the reqfor reconsideration. In his 5th indorsement dated 21 May 1986, 19 Ricardo G. Nepomuceno, Jr., General Counsel of the COA, acting "FTHE COMMISSION", made a return to the Unit Auditor, herein respondent Agustin; Nepomuceno expressed his concurrence with the viof said unit Auditor contained in the latter's 1st indorsement of 22 March 1985.

Thereupon, on 30 June 1986, respondent, now in his capacity as Regional Auditor, transmitted to the General Counsel of the NPC a cop

the aforesaid 5th indorsement of COA's General Counsel, which the former considers as the Commission's decision (hereinafter designaas "5th Indorsement"), together with the pertinent papers, on the appeal made relative to the disallowance; 20 on the same date, he sent a memorandum to the VP-MMRC of the NPC wherein he ordered that the subject disallowance "be booked" in the petitioner's na'upon whose legal opinion the payment of the aforesaid refund was made possible, jointly and severally with Mr. M.V. Villafu(Approving official on the voucher), Ms. P. Gajasan (Examiner), and Ms. L.M. Hermosura (Chief Accountant)," thereby amending previfindings as to the persons liable. 21 On 22 July 1986, a Debit Memorandum 22 was issued in petitioner's name debiting his account withNPC for the amount of the hospitalization expenses.

Petitioner, on 28 September 1986, filed the instant petition seeking to annul and get aside the above-mentioned:

a) Memorandum of respondent Agustin dated 9 January 1985;

b) Memorandum of respondent Pilar dated 3 December 1984;



c) lst indorsement of respondent Agustin, dated 22 March 1985, to the Chairman, COA;

d) 3rd indorsement of respondent Segarra dated 24 April 1985;

e) 4th indorsement of respondent Ursal, dated 30 May 1985, to the General Counsel of the COA, conforming to the position of JM. Agustin; and

f) 5th indorsement of the COA General Counsel Nepomuceno, Jr. dated 21 May 1986. 23

and praying for a writ of preliminary injunction to enjoin respondents from enforcing the same.

n support thereof, petitioner alleges that he prepared the questioned legal opinion in the performance of his official functionsmandated by law. At the time he rendered it, he was the officer-in-charge of the NPC's Office of the General Counsel. Section 15-A ocharter 24 provides that all legal matters shall be handled by the General Counsel of the Corporation. As such, he provides legal advand/or renders legal opinions on legal matters involving the NPC. Since this function is quasi-judicial in nature, the discretion exercisethe discharge thereof is not subject to re-examination or controversion by the respondents; when the latter did what was proscribed, tn effect usurped the statutory function of the General Counsel of the NPC. There is no law which expressly authorizes the respondent

re-examine or controvert the General Counsel's opinion. Petitioner additionally stresses that he is not personally liable for the amodisallowed as he was merely performing his official functions. Besides, his questioned opinion is not alleged to have been rendered wmalice and bad faith. 25

n the Resolution of 6 October 1986, this Court dismissed the petition "for having been filed out of time . . . and for late payment of

egalfees . . ." 26

Acting on petitioner's motion for reconsideration, this Court, on 22 June 1987, granted the motion, reinstated the petition and requiredrespondents to comment on the same. 27

Respondents, through the Office of the Solicitor General, filed their Comment on 9 October 1987. 28 They maintain that the questiodisbursement on the basis of the legal opinion of the petitioner is within the scope of the auditing power of the COA. The Constitutgrants the COA the power, authority and duty to examine, audit and settle all accounts pertaining to the expenditures or uses of funds property pertaining to the Government or any of its subdivisions, agencies or instrumentalities, including government-owned or controcorporations. 29 The matter of allowing in audit a disbursement account is not a ministerial function, but one which necessitates exercise of discretion. Besides, the OPLGS, Abodizo's employer, admitted that the incident was purely accidental and that there is

showing whatsoever in the accident report of any negligence on the part of the NPC or its employees; this being the case, the liability ofNPC for quasi-delict under Article 2176 of the New Civil Code cannot be sustained. Finally, respondents assert that it was petitioner's lopinion which made possible the questioned disbursement; accordingly, the 30 June 1986 request of respondent Agustin to book disallowance in the petitioner's name, jointly and severally with the other officials found responsible therefor, is in order as it was mpursuant to Section 103 of the Government Auditing Code 30 which provides:

Expenditures of government funds or uses of government property in violation of law or regulations shall be a personal liability of official or employee found to be directly responsible therefor.

On 18 April 1988, this Court resolved to give due course to the petition and require both parties to submit their simultaneous Memoran31 which they subsequently complied with.

The principal issues raised in this case are:

(1) Does the legal opinion of petitioner, which was relied upon for the disbursement in question, preclude or bar the COA fdisallowing in post-audit such disbursement?

(2) Has the General Counsel of the COA the authority to decide a motion to reconsider the disallowance in question?

(3) Is the petitioner personally liable for the disallowance on the theory that the disbursement was made on the basis thereof?

1. As to the first, We find petitioner's proposition to be a bit outlandish; he overrates the power of the General Counsel of the and belittles the authority of the COA. While it may be true that Section 15-A of R.A. No. 6395 (charter of the NPC) provides that all lematters shall be handled by the General Counsel of the Corporation, it by no means follows that all legal opinions of the General Couare ex-cathedra and binding upon all. In short, said provision does not confer upon him any degree of infallibility. It would have b

dangerous if it were otherwise for not only would he be able to inextricably and unjustly bind the corporation or compel it to abide by



egal opinion even if it were wrong, he would also subordinate this Court to such opinion even if this Court is the final authority on howaw should be read. Petitioner's theory destroys the very essence of the public trust character of a public office. He should be reminded

just as others in governmentservice — of Section 1, Article XI of the 1987 Constitution which reads:

Sec. 1. Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve them with utmresponsibility, integrity, loyalty, and efficiency, act with patriotism and justice, and lead modest lives.

The NPC, as a government-owned corporation, is under the COA's audit power. Under the 1973 Constitution, which was the Constitutioforce at the time the disallowance in question was made, the COA had the power to, inter alia, examine, audit, and settle, in accorda

with law and regulations, all accounts pertaining to the revenues and receipts of, and expenditures or uses of funds and property, owneheld in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-ownecontrolled corporations; 32 and promulgate accounting and auditing rules and regulations including those for the prevention of irreguunnecessary, excessive, or extravagant expenditures or uses of funds or property.

The 1987 Constitution preserves this power and function and grants the COA:

. . . exclusive authority, subject to the limitations in this Article, to define the scope of its audit and examination, establish the techniqand methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, uses of government funds and propert33

Both the 1973 and 1987 Constitutions conferred upon the COA a more active role and invested it with broader and more extensive pow

These were not meant to make it a toothless tiger, but a dynamic, effective, efficient and independent watchdog of the Government. 34

n determining whether an expenditure of a Government agency or instrumentality such as the NPC is irregular, unnecessary, excessextravagant or unconscionable, the COA should not be bound by the opinion of the legal counsel of said agency or instrumentality wmay have been the basis for the questioned disbursement; otherwise, it would indeed become a toothless tiger and its auditing funcwould be a meaningless and futile exercise. Its beacon lights then should be nothing more than the pertinent laws and its rules regulations.

n the instant case, on the basis of the pertinent documents attached to the pleadings, the COA auditor had every reason to believe thatdisbursement of P53,802.26 by the NPC as a refund to the OPLGS for the hospitalization expenses of Abodizo, on the theory that the Nwas actually liable under the law on quasi-delict, as determined by the petitions, was irregular, if not illegal. Other than the report of Maand Barrera dated 27 May 1982, 35 there is no competent evidence to show that either the NPC or any of its employees were respons

for the accident.

On the contrary, in its letter of 30 August 1982, 36 the OPLGS admitted that the "incident was purely accidental in nature," but t"considering that the accident took place within the premises of the National Power Corporation and the cause of which was the Tube lof HPH 5B, which was still undergoing repair, it is but proper that cost of hospital bills and other expenses incurred by MR. DOMINABODIZO be shouldered by the National Power Corporation." It further admits that it will not "press our contention that the National PoCorporation should pay" the hospital expenses, but appeals and requests that in the light of the "relationship" between it an d the NPC, the services both render to each other, the NPC nonetheless pay for the hospitalization expenses.

t is not disputed that petitioner conducted no further investigation into the causes of the accident to determine for himself if indeed NPC's or any of its employees' negligence was the proximate cause of the accident. Neither is it disputed that petitioner was at that tmerely an officer-in-charge of the Office of the General Counsel. He remained such only from 30 September to 2 October 1982.rendered the questioned legal opinion on 1 October 1982, 37 on the second day of his short tenure and barely a day before it ended. Th

was hardly any time for him to inquire further into the facts surrounding the incident, although he had all the time to simply refer it toregular General Counsel who was expected to report back on 3 October 1982.

Finally, the OPLGS' claims for reimbursement was not referred to the NPC's governing board or authorized officer for approval in the lighthe legal opinion. By itself, the latter did not vest him with authority to approve the claim. It was nothing but a recommendation in favothe claim.

Respondent Agustin then cannot be faulted when in his Certificate of Settlement and Balances No. 01-04-83, 38 he disallowed Nquestioned disbursement. However, in his notation as to the persons to be liable therefor, he mentions only Mr. M.V. Villafuerte (Approving Authority) whose liabilities are primary; E. Gamama and P. Gajasan (Management's Examiners) whose liabilities are "secondand Joint"; and H.L. Hermosura (Chief Accountant) whose liability is primary. Petitioner was not found to be liable. He was made jointly severally liable with Villafuerte, Gajasan and Hermosura only in the Memorandum of respondent Agustin dated 30 June 1986. 39 It ma

noted that in his Memorandum he excluded Gamama. Considering that what was sustained up to the level of the General Counsel of



COA was the disallowance made in the aforementioned Certificate of Settlement and Balances and necessarily, his ruling thereon as to ware the parties liable therefor, Agustin acted arbitrarily and with grave abuse of discretion when, without prior notice to petitioner,made the latter liable for the disallowance and worse, he directed, in the guise of a request, the Chief Accountant of the NP C, Metro MaRegional Center, to book the disallowance in the name of petitioner. Petitioner was not made a party to the motion for reconsiderawhich the General Counsel of the COA acted upon. Respondent Agustin effectively denied petitioner of his right to due process.

2. What is claimed in this case to be the decision of the COA is actually the 5th Indorsement of Ricardo G. Nepomuceno, Jr., GenCounsel thereof, which reads:

xxx xxx xxx

5th IndorsementMay 21, 1986

Respectfully returned to the Auditor, National Power Corporation, Quezon City, concurring with the views of the Unit Auditor, as contain the 1st Indorsement, dated March 22, 1985, on the refund of hospitalization expenses in favor of Domingo Abodizo.

FOR THE COMMISSION:(S/T) RICARDO G. NEPOMUCENO, JR.General Counsel 40

t must be recalled that in his Memorandum of 14 February 1985, 41 General Counsel Ilao of the NPC asked for a reconsideration of

disallowance and requested that the same be forwarded to the Chairman of the COA pursuant to Item III-7 of COA Circular 81-156 dateJanuary 1981. Clearly, therefore, the motion for reconsideration became a matter for the COA to resolve or decide. Under the provisionthe Constitution then in force, the COA was bound to decide it within sixty (60) days from the date of its submission for resolution. Sec2 of Article XII-D thereof reads:

Sec. 2. The Commission on Audit shall have the following powers and functions:

xxx xxx xxx

(2) Decide any case brought before it within sixty days from the date of its submission for resolution. Unless otherwise providedaw, any decision, order, or ruling of the Commission may be brought to the Supreme Court on certiorari by the aggrieved party wit

thirty days from his receipt of a copy thereof.

Section 7, Article IX-A of the present Constitution also provides:

Sec. 7. Each Commission shall decide by a majority vote of all its members any case or matter brought before it within sixty days fromdate of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by aggrieved party within thirty days from receipt of a copy thereof.

The COA, both under the 1973 and 1987 Constitution, is a collegial body. It must resolve cases presented to it as such. Its General Councannot act for the Commission for he is not even a Commissioner thereof. He can only offer legal advice or render an opinion in order tothe COA in the resolution of a case or a legal question.

Thus, Nepomuceno's 5th indorsement cannot, by any stretch of the imagination, be considered as a "decision" of the COA. If the same wto be so considered, it would be void ab initio for having been rendered by one who is not possessed with any power or author ity. In Mvs. Commission onAudit, 42 this Court held that a so-called decision, denominated as Decision No. 77-142 by the Manager of the Technical Service Officethe COA, "by authority of the acting chairman" is "substantively void ab initio," because it was rendered without jurisdiction. "It hadessential inherent defect that could not be cured or waived."

What Mr. Nepomuceno should have done was to render the opinion precisely sought for in the preceding 4th indorsement of respondUrsal dated 30 May 1985, 43 and submit the same to the Commission for the latter's guidance in resolving the motion for reconsideratio

Respondent Agustin, therefore, acted prematurely and with undue haste in implementing the disallowance against the parties allegeiable therefor on the basis of the favorable opinion of Mr. Nepomuceno who, incidentally, merely concurred with his (Agustin's) 22 Ma

1985 indorsement.



3. Even if We are to assume that the disallowance was proper, there would still be no basis for directly holding petitioner litherefor together with those earlier found to be responsible by Agustin in his Certificate of Settlement and Balances; moreover, thwould be no reason to debit immediately his account with the NPC. In the first place, as earlier stated, up to the level of the GenCounsel of the COA who acted for the Commission, it was never claimed that petitioner was personally liable for the disallowdisbursement; only the approving authority, the management examiners and the Chief Accountant of the NPC were deemed liable thereThis seemed to be proper in the light of Sections 103, 105(l) and 106 of P.D. No. 1445. Under said Section 103, expenditures of governmfunds or uses of governments property in violation of law or regulations shall be a personal liability of the official or employee fodirectly responsible therefor. In the instant case, while it may perhaps be true that the petitioner had rendered the opinion which relied upon for the disbursement, it cannot be said that he was directly responsible therefor. His was only a legal opinion which

governing board of the NPC or any of its authorized officials could adopt or reject in the resolution of the request of OPLGSreimbursement. As earlier indicated, there is no showing at all that such governing board or any authorized official formally approved request and granted the authority to make the refund. Respondent then was originally correct in excluding petitioner from the Certificof Settlement and Balances.

t does not necessarily follow, however, that in no case may the petitioner be liable for his legal opinion. As the then offi cer-in-charge ofOffice of the General Counsel of NPC, he exercised quasi judicial functions. He was empowered with discretion and authority to rendeopinion as to whether the claim for reimbursement by the OPLGS was proper and ultimately, to determine if the NPC or any ofemployees was responsible for the accident and, therefore, liable for the injury suffered by Abodizo under the law on quasi-delict. Irendered the opinion in the just performance of his official duties and within the scope of his assigned tasks, he would not be personiable for any injury that may result therefrom. 44 Otherwise stated, a public official may be liable in his personal capacity for whate

damage he may have caused by his act done with malice and in bad faith or beyond the scope of his authority or jurisdiction. 45 Paragr(1), Section 38, Chapter 9, Book I, of the Administrative Code of 1987 46 expressly provides:

Sec. 38. Liability of superior officers. — (1) A public officer shall not be civilly liable for acts done in the performance of his official dutunless there is a clear showing of bad faith, malice or gross negligence.

xxx xxx xxx

But whether petitioner acted with malice, bad faith or beyond the scope of his authority or jurisdiction is a matter respondent Agucannot dispose of unilaterally and summarily without infringing on the petitioner's right to due process.

WHEREFORE, the instant petition is GRANTED. The challenged 5th indorsement of the General Counsel of the respondent CommissionAudit, dated 21 May 1986, Memorandum of respondent Agustin of 30 June 1986, insofar, as it holds petitioner personally liable for disallowed disbursement and the Debit Memo, dated 22 July 1986, of the Manager of the Accounting Department of the National Po

Corporation, are hereby set aside for being null and void.

SO ORDERED.

G.R. No. 92585 May 8, 1992

CALTEX PHILIPPINES, INC., petitioner,vs.THE HONORABLE COMMISSION ON AUDIT, HONORABLE COMMISSIONER BARTOLOME C. FERNANDEZ and HONORABLE COMMISSIOALBERTO P. CRUZ, respondents.

DAVIDE, JR., J.:

This is a petition erroneously brought under Rule 44 of the Rules of Court 1 questioning the authority of the Commission on Audit (COAdisallowing petitioner's claims for reimbursement from the Oil Price Stabilization Fund (OPSF) and seeking the reversal of said Commissidecision denying its claims for recovery of financing charges from the Fund and reimbursement of underrecovery arising from sales to National Power Corporation, Atlas Consolidated Mining and Development Corporation (ATLAS) and Marcopper Mining Corporation (MCOPPER), preventing it from exercising the right to offset its remittances against its reimbursement vis-a-vis the OPSF and disallowingclaims which are still pending resolution before the Office of Energy Affairs (OEA) and the Department of Finance (DOF).

Pursuant to the 1987 Constitution, 2 any decision, order or ruling of the Constitutional Commissions 3 may be brought to this Courtcertiorari by the aggrieved party within thirty (30) days from receipt of a copy thereof. The certiorari referred to is the special civil actioncertiorari under Rule 65 of the Rules of Court. 4



Considering, however, that the allegations that the COA acted with:(a) total lack of jurisdiction in completely ignoring and showing absolutely no respect for the findings and rulings of th e administrator offund itself and in disallowing a claim which is still pending resolution at the OEA level, and (b) "grave abuse of discretion and complewithout jurisdiction" 5 in declaring that petitioner cannot avail of the right to offset any amount that it may be required under the lawremit to the OPSF against any amount that it may receive by way of reimbursement therefrom are sufficient to bring this petition wiRule 65 of the Rules of Court, and, considering further the importance of the issues raised, the error in the designation of the rempursued will, in this instance, be excused.

The issues raised revolve around the OPSF created under Section 8 of Presidential Decree (P.D.) No. 1956, as amended by Executive O(E.O.) No. 137. As amended, said Section 8 reads as follows:

Sec. 8 . There is hereby created a Trust Account in the books of accounts of the Ministry of Energy to be designated as Oil PStabilization Fund (OPSF) for the purpose of minimizing frequent price changes brought about by exchange rate adjustments andchanges in world market prices of crude oil and imported petroleum products. The Oil Price Stabilization Fund may be sourced from anthe following:

a) Any increase in the tax collection from ad valorem tax or customs duty imposed on petroleum products subject to tax under Decree arising from exchange rate adjustment, as may be determined by the Minister of Finance in consultation with the Board of Energ

b) Any increase in the tax collection as a result of the lifting of tax exemptions of government corporations, as may be determinethe Minister of Finance in consultation with the Board of Energy;

c) Any additional amount to be imposed on petroleum products to augment the resources of the Fund through an appropriate O

that may be issued by the Board of Energy requiring payment by persons or companies engaged in the business of importmanufacturing and/or marketing petroleum products;

d) Any resulting peso cost differentials in case the actual peso costs paid by oil companies in the importation of crude oil petroleum products is less than the peso costs computed using the reference foreign exchange rate as fixed by the Board of Energy.

The Fund herein created shall be used for the following:

1) To reimburse the oil companies for cost increases in crude oil and imported petroleum products resulting from exchange adjustment and/or increase in world market prices of crude oil;

2) To reimburse the oil companies for possible cost under-recovery incurred as a result of the reduction of domestic price

petroleum products. The magnitude of the underrecovery, if any, shall be determined by the Ministry of Finance. "Cost underrecoveshall include the following:

. Reduction in oil company take as directed by the Board of Energy without the corresponding reduction in the landed cost onventories in the possession of the oil companies at the time of the price change;

i. Reduction in internal ad valorem taxes as a result of foregoing government mandated price reductions;

ii. Other factors as may be determined by the Ministry of Finance to result in cost underrecovery.

The Oil Price Stabilization Fund (OPSF) shall be administered by the Ministry of Energy.

The material operative facts of this case, as gathered from the pleadings of the parties, are not disputed.

On 2 February 1989, the COA sent a letter to Caltex Philippines, Inc. (CPI), hereinafter referred to as Petitioner, directing the latter to reto the OPSF its collection, excluding that unremitted for the years 1986 and 1988, of the additional tax on petroleum products authoriunder the aforesaid Section 8 of P.D. No. 1956 which, as of 31 December 1987, amounted to P335,037,649.00 and informing it tpending such remittance, all of its claims for reimbursement from the OPSF shall be held in abeyance. 6

On 9 March 1989, the COA sent another letter to petitioner informing it that partial verification with the OEA showed that the grand tof its unremitted collections of the above tax is P1,287,668,820.00, broken down as follows:

1986 — P233,190,916.001987 — 335,065,650.001988 — 719,412,254.00;



directing it to remit the same, with interest and surcharges thereon, within sixty (60) days from receipt of the letter; advising it thatCOA will hold in abeyance the audit of all its claims for reimbursement from the OPSF; and directing it to desist from further offsetting taxes collected against outstanding claims in 1989 and subsequent periods. 7

n its letter of 3 May 1989, petitioner requested the COA for an early release of its reimbursement certificates from the OPSF coveclaims with the Office of Energy Affairs since June 1987 up to March 1989, invoking in support thereof COA Circular No. 89-299 on the lifof pre-audit of government transactions of national government agencies and government-owned or controlled corporations. 8

n its Answer dated 8 May 1989, the COA denied petitioner's request for the early release of the reimbursement certificates from the Oand repeated its earlier directive to petitioner to forward payment of the latter's unremitted collections to the OPSF to facilitate CO

audit action on the reimbursement claims. 9

By way of a reply, petitioner, in a letter dated 31 May 1989, submitted to the COA a proposal for the payment of the collections andrecovery of claims, since the outright payment of the sum of P1.287 billion to the OEA as a prerequisite for the processing of said claagainst the OPSF will cause a very serious impairment of its cash position. 10 The proposal reads:

We, therefore, very respectfully propose the following:

(1) Any procedural arrangement acceptable to COA to facilitate monitoring of payments and reimbursements will be administerethe ERB/Finance Dept./OEA, as agencies designated by law to administer/regulate OPSF.

(2) For the retroactive period, Caltex will deliver to OEA, P1.287 billion as payment to OPSF, similarly OEA will deliver to Caltexsame amount in cash reimbursement from OPSF.

(3) The COA audit will commence immediately and will be conducted expeditiously.

(4) The review of current claims (1989) will be conducted expeditiously to preclude further accumulation of reimbursement fOPSF.

On 7 June 1989, the COA, with the Chairman taking no part, handed down Decision No. 921 accepting the above-stated proposal prohibiting petitioner from further offsetting remittances and reimbursements for the current and ensuing years. 11 Decision No. reads:

This pertains to the within separate requests of Mr. Manuel A. Estrella, President, Petron Corporation, and Mr. Francis Ablan, PresidentManaging Director, Caltex (Philippines) Inc., for reconsideration of this Commission's adverse action embodied in its letters dated Febr

2, 1989 and March 9, 1989, the former directing immediate remittance to the Oil Price Stabilization Fund of collections made by the fipursuant to P.D. 1956, as amended by E.O. No. 137, S. 1987, and the latter reiterating the same directive but further advising the firmdesist from offsetting collections against their claims with the notice that "this Commission will hold in abeyance the audit of all . . . clafor reimbursement from the OPSF."

t appears that under letters of authority issued by the Chairman, Energy Regulatory Board, the aforenamed oil companies were alloweoffset the amounts due to the Oil Price Stabilization Fund against their outstanding claims from the said Fund for the calendar years 1and 1988, pending with the then Ministry of Energy, the government entity charged with administering the OPSF. This Commisshowever, expressing serious doubts as to the propriety of the offsetting of all types of reimbursements from the OPSF against all categoof remittances, advised these oil companies that such offsetting was bereft of legal basis. Aggrieved thereby, these companies now sreconsideration and in support thereof clearly manifest their intent to make arrangements for the remittance to the Office of Energy Afof the amount of collections equivalent to what has been previously offset, provided that this Commission authorizes the Office of EneAffairs to prepare the corresponding checks representing reimbursement from the OPSF. It is alleged that the implementation of such

arrangement, whereby the remittance of collections due to the OPSF and the reimbursement of claims from the Fund shall be made wia period of not more than one week from each other, will benefit the Fund and not unduly jeopardize the continuing daily crequirements of these firms.

Upon a circumspect evaluation of the circumstances herein obtaining, this Commission perceives no further objectionable feature inproposed arrangement, provided that 15% of whatever amount is due from the Fund is retained by the Office of Energy Affairs, the sambe answerable for suspensions or disallowances, errors or discrepancies which may be noted in the course of audit and surcharges for remittances without prejudice to similar future retentions to answer for any deficiency in such surcharges, and provided further thatoffsetting of remittances and reimbursements for the current and ensuing years shall be allowed.

Pursuant to this decision, the COA, on 18 August 1989, sent the following letter to Executive Director Wenceslao R. De la Paz of the Ofof Energy Affairs: 12



Dear Atty. dela Paz:

Pursuant to the Commission on Audit Decision No. 921 dated June 7, 1989, and based on our initial verification of documents submitteus by your Office in support of Caltex (Philippines), Inc. offsets (sic) for the year 1986 to May 31, 1989, as well as its outstanding claagainst the Oil Price Stabilization Fund (OPSF) as of May 31, 1989, we are pleased to inform your Office that Caltex (Philippines), Inc. sbe required to remit to OPSF an amount of P1,505,668,906, representing remittances to the OPSF which were offset against its clareimbursements (net of unsubmitted claims). In addition, the Commission hereby authorize (sic) the Office of Energy Affairs (OEA) to capayment of P1,959,182,612 to Caltex, representing claims initially allowed in audit, the details of which are presented hereunder: . . .

As presented in the foregoing computation the disallowances totalled P387,683,535, which included P130,420,235 representing th

claims disallowed by OEA, details of which is (sic) shown in Schedule 1 as summarized as follows:

Disallowance of COAParticulars Amount

Recovery of financing charges P162,728,475 /aProduct sales 48,402,398 /bnventory losses

Borrow loan arrangement 14,034,786 /cSales to Atlas/Marcopper 32,097,083 /dSales to NPC 558—————— P257,263,300

Disallowances of OEA 130,420,235————————— —————— Total P387,683,535

The reasons for the disallowances are discussed hereunder:

a. Recovery of Financing Charges

Review of the provisions of P.D. 1596 as amended by E.O. 137 seems to indicate that recovery of financing charges by oil companies is among the items for which the OPSF may be utilized. Therefore, it is our view that recovery of financing charges has no legal basis. Tmechanism for such claims is provided in DOF Circular 1-87.

b. Product Sales –– Sales to International Vessels/Airlines

BOE Resolution No. 87-01 dated February 7, 1987 as implemented by OEA Order No. 87-03-095 indicating that (sic) February 7, 1987 as effectivity date that (sic) oil companies should pay OPSF impost on export sales of petroleum products. Effective February 7, 1987 salenternational vessels/airlines should not be included as part of its domestic sales. Changing the effectivity date of the resolution f

February 7, 1987 to October 20, 1987 as covered by subsequent ERB Resolution No. 88-12 dated November 18, 1988 has allowed Caltenclude in their domestic sales volumes to international vessels/airlines and claim the corresponding reimbursements from OPSF during

period. It is our opinion that the effectivity of the said resolution should be February 7, 1987.

c. Inventory losses –– Settlement of Ad Valorem

We reviewed the system of handling Borrow and Loan (BLA) transactions including the related BLA agreement, as they affect the claims

reimbursements of ad valorem taxes. We observed that oil companies immediately settle ad valorem taxes for BLA transaction (sic). Lbalances therefore are not tax paid inventories of Caltex subject to reimbursements but those of the borrower. Hence, we recommreduction of the claim for July, August, and November, 1987 amounting to P14,034,786.

d. Sales to Atlas/Marcopper

LOI No. 1416 dated July 17, 1984 provides that "I hereby order and direct the suspension of payment of all taxes, duties, fees, imposts other charges whether direct or indirect due and payable by the copper mining companies in distress to the national and logovernments." It is our opinion that LOI 1416 which implements the exemption from payment of OPSF imposts as effected by OEA hasegal basis.



Furthermore, we wish to emphasize that payment to Caltex (Phil.) Inc., of the amount as herein authorized shall be subject to availabilitfunds of OPSF as of May 31, 1989 and applicable auditing rules and regulations. With regard to the disallowances, it is further informed the aggrieved party has 30 days within which to appeal the decision of the Commission in accordance with law.

On 8 September 1989, petitioner filed an Omnibus Request for the Reconsideration of the decision based on the following grounds: 13

A) COA-DISALLOWED CLAIMS ARE AUTHORIZED UNDER EXISTING RULES, ORDERS, RESOLUTIONS, CIRCULARS ISSUED BY DEPARTMENT OF FINANCE AND THE ENERGY REGULATORY BOARD PURSUANT TO EXECUTIVE ORDER NO. 137.

xxx xxx xxx

B) ADMINISTRATIVE INTERPRETATIONS IN THE COURSE OF EXERCISE OF EXECUTIVE POWER BY DEPARTMENT OF FINANCE AENERGY REGULATORY BOARD ARE LEGAL AND SHOULD BE RESPECTED AND APPLIED UNLESS DECLARED NULL AND VOID BY COURTSREPEALED BY LEGISLATION.

xxx xxx xxx

C) LEGAL BASIS FOR RETENTION OF OFFSET ARRANGEMENT, AS AUTHORIZED BY THE EXECUTIVE BRANCH OF GOVERNMEREMAINS VALID.

xxx xxx xxx

On 6 November 1989, petitioner filed with the COA a Supplemental Omnibus Request for Reconsideration. 14

On 16 February 1990, the COA, with Chairman Domingo taking no part and with Commissioner Fernandez dissenting in part, handed doDecision No. 1171 affirming the disallowance for recovery of financing charges, inventory losses, and sales to MARCOPPER and ATLAS, wallowing the recovery of product sales or those arising from export sales. 15 Decision No. 1171 reads as follows:

Anent the recovery of financing charges you contend that Caltex Phil. Inc. has the .authority to recover financing charges from the OPSFthe basis of Department of Finance (DOF) Circular 1-87, dated February 18, 1987, which allowed oil companies to "recover cost of financworking capital associated with crude oil shipments," and provided a schedule of reimbursement in terms of peso per barrel. It appears on November 6, 1989, the DOF issued a memorandum to the President of the Philippines explaining the nature of these financing chaand justifying their reimbursement as follows:

As part of your program to promote economic recovery, . . . oil companies (were authorized) to refinance their imports of crude oil

petroleum products from the normal trade credit of 30 days up to 360 days from date of loading . . . Conformably . . ., the oil compandeferred their foreign exchange remittances for purchases by refinancing their import bills from the normal 30-day payment term up todesired 360 days. This refinancing of importations carried additional costs (financing charges) which then became, due to governmmandate, an inherent part of the cost of the purchases of our country's oil requirement.

We beg to disagree with such contention. The justification that financing charges increased oil costs and the schedule of reimbursemrate in peso per barrel (Exhibit 1) used to support alleged increase (sic) were not validated in our independent inquiry. As manifesteExhibit 2, using the same formula which the DOF used in arriving at the reimbursement rate but using comparable percentages insteadpesos, the ineluctable conclusion is that the oil companies are actually gaining rather than losing from the extension of credit because sextension enables them to invest the collections in marketable securities which have much higher rates than those they incur due toextension. The Data we used were obtained from CPI (CALTEX) Management and can easily be verified from our records.

With respect to product sales or those arising from sales to international vessels or airlines, . . ., it is believed that export sales (prod

sales) are entitled to claim refund from the OPSF.

As regard your claim for underrecovery arising from inventory losses, . . . It is the considered view of this Commission that the OPSF isiable to refund such surtax on inventory losses because these are paid to BIR and not OPSF, in view of which CPI (CALTEX) should s

refund from BIR. . . .

Finally, as regards the sales to Atlas and Marcopper, it is represented that you are entitled to claim recovery from the OPSF pursuant to1416 issued on July 17, 1984, since these copper mining companies did not pay CPI (CALTEX) and OPSF imposts which were added toselling price.

Upon a circumspect evaluation, this Commission believes and so holds that the CPI (CALTEX) has no authority to claim reimbursementthis uncollected OPSF impost because LOI 1416 dated July 17, 1984, which exempts distressed mining companies from "all taxes, dut

mport fees and other charges" was issued when OPSF was not yet in existence and could not have contemplated OPSF imposts at the t



of its formulation. Moreover, it is evident that OPSF was not created to aid distressed mining companies but rather to help the domestindustry by stabilizing oil prices.

Unsatisfied with the decision, petitioner filed on 28 March 1990 the present petition wherein it imputes to the COA the commission offollowing errors: 16

RESPONDENT COMMISSION ERRED IN DISALLOWING RECOVERY OF FINANCING CHARGES FROM THE OPSF.

I

RESPONDENT COMMISSION ERRED IN DISALLOWINGCPI's 17 CLAIM FOR REIMBURSEMENT OF UNDERRECOVERY ARISING FROM SALES TO NPC.

II

RESPONDENT COMMISSION ERRED IN DENYING CPI's CLAIMS FOR REIMBURSEMENT ON SALES TO ATLAS AND MARCOPPER.

V

RESPONDENT COMMISSION ERRED IN PREVENTING CPI FROM EXERCISING ITS LEGAL RIGHT TO OFFSET ITS REMITTANCES AGAINSTREIMBURSEMENT VIS-A-VIS THE OPSF.

V

RESPONDENT COMMISSION ERRED IN DISALLOWING CPI's CLAIMS WHICH ARE STILL PENDING RESOLUTION BY (SIC) THE OEA AND DOF.

n the Resolution of 5 April 1990, this Court required the respondents to comment on the petition within ten (10) days from notice. 18

On 6 September 1990, respondents COA and Commissioners Fernandez and Cruz, assisted by the Office of the Solicitor General, filed thComment. 19

This Court resolved to give due course to this petition on 30 May 1991 and required the parties to file their respective Memoranda wi

twenty (20) days from notice. 20

n a Manifestation dated 18 July 1991, the Office of the Solicitor General prays that the Comment filed on 6 September 1990 be consideas the Memorandum for respondents. 21

Upon the other hand, petitioner filed its Memorandum on 14 August 1991.

. Petitioner dwells lengthily on its first assigned error contending, in support thereof, that:

(1) In view of the expanded role of the OPSF pursuant to Executive Order No. 137, which added a second purpose, to wit:

2) To reimburse the oil companies for possible cost underrecovery incurred as a result of the reduction of domestic pricepetroleum products. The magnitude of the underrecovery, if any, shall be determined by the Ministry of Finance. "Cost underrecove

shall include the following:

. Reduction in oil company take as directed by the Board of Energy without the corresponding reduction in the landed cost onventories in the possession of the oil companies at the time of the price change;



the "other factors" mentioned therein that may be determined by the Ministry (now Department) of Finance may include financing chafor "in essence, financing charges constitute unrecovered cost of acquisition of crude oil incurred by the oil companies," as explained in6 November 1989 Memorandum to the President of the Department of Finance; they "directly translate to cost underrecovery in c



where the money market placement rates decline and at the same time the tax on interest income increases. The relationship is such tthe presence of underrecovery or overrecovery is directly dependent on the amount and extent of financing charges."

(2) The claim for recovery of financing charges has clear legal and factual basis; it was filed on the basis of Department of FinaCircular No.1-87, dated 18 February 1987, which provides:

To allow oil companies to recover the costs of financing working capital associated with crude oil shipments, the following guidelines onutilization of the Oil Price Stabilization Fund pertaining to the payment of the foregoing (sic) exchange risk premium and recoverfinancing charges will be implemented:

1. The OPSF foreign exchange premium shall be reduced to a flat rate of one (1) percent for the first (6) months and 1/32 of percent per month thereafter up to a maximum period of one year, to be applied on crude oil' shipments from January 1, 1987. Shipmwith outstanding financing as of January 1, 1987 shall be charged on the basis of the fee applicable to the remaining period of financing.

2. In addition, for shipments loaded after January 1987, oil companies shall be allowed to recover financing charges directly fromOPSF per barrel of crude oil based on the following schedule:

Financing Period Reimbursement RatePesos per Barrel

Less than 180 days None180 days to 239 days 1.90

241 (sic) days to 299 4.02300 days to 369 (sic) days 6.16360 days or more 8.28

The above rates shall be subject to review every sixtydays. 22

Pursuant to this circular, the Department of Finance, in its letter of 18 February 1987, advised the Office of Energy Affairs as follows:

HON. VICENTE T. PATERNODeputy Executive SecretaryFor Energy Affairs

Office of the PresidentMakati, Metro Manila

Dear Sir:

This refers to the letters of the Oil Industry dated December 4, 1986 and February 5, 1987 and subsequent discussions held by the PrReview committee on February 6, 1987.

On the basis of the representations made, the Department of Finance recognizes the necessity to reduce the foreign exchange premium accruing to the Oil Price Stabilization Fund (OPSF). Such a reduction would allow the industry to recover partly associafinancing charges on crude oil imports. Accordingly, the OPSF foreign exchange risk fee shall be reduced to a flat charge of 1% for the six (6) months plus 1/32% of 1% per month thereafter up to a maximum period of one year, effective January 1, 1987. In addition, sinceprevailing company take would still leave unrecovered financing charges, reimbursement may be secured from the OPSF in accordance w

the provisions of the attached Department of Finance circular. 23

Acting on this letter, the OEA issued on 4 May 1987 Order No. 87-05-096 which contains the guidelines for the computation of the foreexchange risk fee and the recovery of financing charges from the OPSF, to wit:

B. FINANCE CHARGES

1. Oil companies shall be allowed to recover financing charges directly from the OPSF for both crude and product shipments loaafter January 1, 1987 based on the following rates:

Financing Period Reimbursement Rate(PBbl.)



Less than 180 days None180 days to 239 days 1.90240 days to 229 (sic) days 4.02300 days to 359 days 6.16360 days to more 8.28

2. The above rates shall be subject to review every sixty days. 24

Then on 22 November 1988, the Department of Finance issued Circular No. 4-88 imposing further guidelines on the recoverabilitfinancing charges, to wit:

Following are the supplemental rules to Department of Finance Circular No. 1-87 dated February 18, 1987 which allowed the recoverfinancing charges directly from the Oil Price Stabilization Fund. (OPSF):

1. The Claim for reimbursement shall be on a per shipment basis.

2. The claim shall be filed with the Office of Energy Affairs together with the claim on peso cost differential for a particular shipmand duly certified supporting documents provided for under Ministry of Finance No. 11-85.

3. The reimbursement shall be on the form of reimbursement certificate (Annex A) to be issued by the Office of Energy Affairs. said certificate may be used to offset against amounts payable to the OPSF. The oil companies may also redeem said certificates in casnot utilized, subject to availability of funds. 25

The OEA disseminated this Circular to all oil companies in its Memorandum Circular No. 88-12-017. 26

The COA can neither ignore these issuances nor formulate its own interpretation of the laws in the light of the determination of executagencies. The determination by the Department of Finance and the OEA that financing charges are recoverable from the OPSF is entitlegreat weight and consideration. 27 The function of the COA, particularly in the matter of allowing or disallowing certain expenditureimited to the promulgation of accounting and auditing rules for, among others, the disallowance of irregular, unnecessary, excess

extravagant, or unconscionable expenditures, or uses of government funds and properties. 28

(3) Denial of petitioner's claim for reimbursement would be inequitable. Additionally, COA's claim that petitioner is gaining, insteaosing, from the extension of credit, is belatedly raised and not supported by expert analysis.

n impeaching the validity of petitioner's assertions, the respondents argue that:

1. The Constitution gives the COA discretionary power to disapprove irregular or unnecessary government expenditures and asmonetary claims of petitioner are not allowed by law, the COA acted within its jurisdiction in denying them;

2. P.D. No. 1956 and E.O. No. 137 do not allow reimbursement of financing charges from the OPSF;

3. Under the principle of ejusdem generis, the "other factors" mentioned in the second purpose of the OPSF pursuant to E.O. No. can only include "factors which are of the same nature or analogous to those enumerated;"

4. In allowing reimbursement of financing charges from OPSF, Circular No. 1-87 of the Department of Finance violates P.D. No. 1and E.O. No. 137; and

5. Department of Finance rules and regulations implementing P.D. No. 1956 do not likewise allow reimbursement of financing

charges. 29

We find no merit in the first assigned error.

As to the power of the COA, which must first be resolved in view of its primacy, We find the theory of petitioner –– that such doesextend to the disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or use of government fuand properties, but only to the promulgation of accounting and auditing rules for, among others, such disallowance –– to be untenabthe light of the provisions of the 1987 Constitution and related laws.

Section 2, Subdivision D, Article IX of the 1987 Constitution expressly provides:

Sec. 2(l). The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to

revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government



any of its subdivisions, agencies, or instrumentalities, including government-owned and controlled corporations with original charters, on a post-audit basis: (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitutionautonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) snon-governmental entities receiving subsidy or equity, directly or indirectly, from or through the government, which are required by lawthe granting institution to submit to such audit as a condition of subsidy or equity. However, where the internal control system of audited agencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary appropriate to correct the deficiencies. It shall keep the general accounts, of the Government and, for such period as may be providedaw, preserve the vouchers and other supporting papers pertaining thereto.

(2) The Commission shall have exclusive authority, subject to the limitations in this Article, to define the scope of its audit

examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulatincluding those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or, unconscionable expendituresuses of government funds and properties.

These present powers, consistent with the declared independence of the Commission, 30 are broader and more extensive than conferred by the 1973 Constitution. Under the latter, the Commission was empowered to:

Examine, audit, and settle, in accordance with law and regulations, all accounts pertaining to the revenues, and receipts of, expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisioagencies, or instrumentalities including government-owned or controlled corporations, keep the general accounts of the Government afor such period as may be provided by law, preserve the vouchers pertaining thereto; and promulgate accounting and auditing rules regulations including those for the prevention of irregular, unnecessary, excessive, or extravagant expenditures or uses of funds property. 31

Upon the other hand, under the 1935 Constitution, the power and authority of the COA's precursor, the General Auditing Office, weunfortunately, limited; its very role was markedly passive. Section 2 of Article XI thereof provided:

Sec. 2. The Auditor General shall examine, audit, and settle all accounts pertaining to the revenues and receipts from whatever souncluding trust funds derived from bond issues; and audit, in accordance with law and administrative regulations, all expenditures of fu

or property pertaining to or held in trust by the Government or the provinces or municipalities thereof. He shall keep the general accouof the Government and the preserve the vouchers pertaining thereto. It shall be the duty of the Auditor General to bring to the attentiothe proper administrative officer expenditures of funds or property which, in his opinion, are irregular, unnecessary, excessiveextravagant. He shall also perform such other functions as may be prescribed by law.

As clearly shown above, in respect to irregular, unnecessary, excessive or extravagant expenditures or uses of funds, the 1935 Constitu

did not grant the Auditor General the power to issue rules and regulations to prevent the same. His was merely to bring that matter to attention of the proper administrative officer.

The ruling on this particular point, quoted by petitioner from the cases of Guevarra vs. Gimenez 32 and Ramos vs. Aquino, 33 are no loncontrolling as the two (2) were decided in the light of the 1935 Constitution.

There can be no doubt, however, that the audit power of the Auditor General under the 1935 Constitution and the Commission on Aunder the 1973 Constitution authorized them to disallow illegal expenditures of funds or uses of funds and property. Our presConstitution retains that same power and authority, further strengthened by the definition of the COA's general jurisdiction in Section 2the Government Auditing Code of the Philippines 34 and Administrative Code of 1987. 35 Pursuant to its power to promulgate accounand auditing rules and regulations for the prevention of irregular, unnecessary, excessive or extravagant expenditures or uses of fundsthe COA promulgated on 29 March 1977 COA Circular No. 77-55. Since the COA is responsible for the enforcement of the rules regulations, it goes without saying that failure to comply with them is a ground for disapproving the payment of the proposed expendit

As observed by one of the Commissioners of the 1986 Constitutional Commission, Fr. Joaquin G. Bernas: 37

t should be noted, however, that whereas under Article XI, Section 2, of the 1935 Constitution the Auditor General could not cor"irregular, unnecessary, excessive or extravagant" expenditures of public funds but could only "bring [the matter] to the attention of proper administrative officer," under the 1987 Constitution, as also under the 1973 Constitution, the Commission on Audit can "promulaccounting and auditing rules and regulations including those for the prevention and disallowance of irregular, unnecessary, excessextravagant, or unconscionable expenditures or uses of government funds and properties." Hence, since the Commission on Audit multimately be responsible for the enforcement of these rules and regulations, the failure to comply with these regulations can be a grofor disapproving the payment of a proposed expenditure.

ndeed, when the framers of the last two (2) Constitutions conferred upon the COA a more active role and invested it with broader more extensive powers, they did not intend merely to make the COA a toothless tiger, but rather envisioned a dynamic, effective, effic

and independent watchdog of the Government.



The issue of the financing charges boils down to the validity of Department of Finance Circular No. 1 -87, Department of Finance Circular4-88 and the implementing circulars of the OEA, issued pursuant to Section 8, P.D. No. 1956, as amended by E.O. No. 137, authorizing idetermine "other factors" which may result in cost underrecovery and a consequent reimbursement from the OPSF.

The Solicitor General maintains that, following the doctrine of ejusdem generis, financing charges are not included in "cost underrecovand, therefore, cannot be considered as one of the "other factors." Section 8 of P.D. No. 1956, as amended by E.O. No. 137, does explicitly define what "cost underrecovery" is. It merely states what it includes. Thus:

. . . "Cost underrecovery" shall include the following:

. Reduction in oil company takes as directed by the Board of Energy without the corresponding reduction in the landed cost onventories in the possession of the oil companies at the time of the price change;



These "other factors" can include only those which are of the same class or nature as the two specifically enumerated in subparagraphand (ii). A common characteristic of both is that they are in the nature of government mandated price reductions. Hence, any other fawhich seeks to be a part of the enumeration, or which could qualify as a cost underrecovery, must be of the same class or nature as thspecifically enumerated.

Petitioner, however, suggests that E.O. No. 137 intended to grant the Department of Finance broad and unrestricted authoritydetermine or define "other factors."

Both views are unacceptable to this Court.

The rule of ejusdem generis states that "[w]here general words follow an enumeration of persons or things, by words of a particular specific meaning, such general words are not to be construed in their widest extent, but are held to be as applying only to persons or thof the same kind or class as those specifically mentioned. 38 A reading of subparagraphs (i) and (ii) easily discloses that they do not havcommon characteristic. The first relates to price reduction as directed by the Board of Energy while the second refers to reductionternal ad valorem taxes. Therefore, subparagraph (iii) cannot be limited by the enumeration in these subparagraphs. What should

considered for purposes of determining the "other factors" in subparagraph (iii) is the first sentence of paragraph (2) of the Section whexplicitly allows cost underrecovery only if such were incurred as a result of the reduction of domestic prices of petroleum products.

Although petitioner's financing losses, if indeed incurred, may constitute cost underrecovery in the sense that such were incurred result of the inability to fully offset financing expenses from yields in money market placements, they do not, however, fall under foregoing provision of P.D. No. 1956, as amended, because the same did not result from the reduction of the domestic price of petroleproducts. Until paragraph (2), Section 8 of the decree, as amended, is further amended by Congress, this Court can do nothing. The dutthis Court is not to legislate, but to apply or interpret the law. Be that as it may, this Court wishes to emphasize that as the facts in this have shown, it was at the behest of the Government that petitioner refinanced its oil import payments from the normal 30-day trade crto a maximum of 360 days. Petitioner could be correct in its assertion that owing to the extended period for payment, the finannstitution which refinanced said payments charged a higher interest, thereby resulting in higher financing expenses for the petitione

would appear then that equity considerations dictate that petitioner should somehow be allowed to recover its financing losses, if awhich may have been sustained because it accommodated the request of the Government. Although under Section 29 of the Nationternal Revenue Code such losses may be deducted from gross income, the effect of that loss would be merely to reduce its taxancome, but not to actually wipe out such losses. The Government then may consider some positive measures to help petitioner and ot

similarly situated to obtain substantial relief. An amendment, as aforestated, may then be in order.

Upon the other hand, to accept petitioner's theory of "unrestricted authority" on the part of the Department of Finance to determindefine "other factors" is to uphold an undue delegation of legislative power, it clearly appearing that the subject provision does not proany standard for the exercise of the authority. It is a fundamental rule that delegation of legislative power may be sustained only uponground that some standard for its exercise is provided and that the legislature, in making the delegation, has prescribed the manner of exercise of the delegated authority. 39

Finally, whether petitioner gained or lost by reason of the extensive credit is rendered irrelevant by reason of the foregoing disquisitionmay nevertheless be stated that petitioner failed to disprove COA's claim that it had in fact gained in the process. Otherwise statpetitioner failed to sufficiently show that it incurred a loss. Such being the case, how can petitioner claim for reimbursement? It canhave its cake and eat it too.



I. Anent the claims arising from sales to the National Power Corporation, We find for the petitioner. The respondents themseadmit in their Comment that underrecovery arising from sales to NPC are reimbursable because NPC was granted full exemption frompayment of taxes; to prove this, respondents trace the laws providing for such exemption. 40 The last law cited is the Fiscal IncentRegulatory Board's Resolution No. 17-87 of 24 June 1987 which provides, in part, "that the tax and duty exemption privileges of National Power Corporation, including those pertaining to its domestic purchases of petroleum and petroleum products . . . are restoeffective March 10, 1987." In a Memorandum issued on 5 October 1987 by the Office of the President, NPC's tax exemption was confirmand approved.

Furthermore, as pointed out by respondents, the intention to exempt sales of petroleum products to the NPC is evident in the recepassed Republic Act No. 6952 establishing the Petroleum Price Standby Fund to support the OPSF. 41 The pertinent part of Section

Republic Act No. 6952 provides:

Sec. 2. Application of the Fund shall be subject to the following conditions:

(1) That the Fund shall be used to reimburse the oil companies for (a) cost increases of imported crude oil and finished petroleproducts resulting from foreign exchange rate adjustments and/or increases in world market prices of crude oil; (b) cost underreconcurred as a result of fuel oil sales to the National Power Corporation (NPC); and (c) other cost underrecoveries incurred as may be fin

decided by the SupremeCourt; . . .

Hence, petitioner can recover its claim arising from sales of petroleum products to the National Power Corporation.

II. With respect to its claim for reimbursement on sales to ATLAS and MARCOPPER, petitioner relies on Letter of Instruction (

1416, dated 17 July 1984, which ordered the suspension of payments of all taxes, duties, fees and other charges, whether direct or indirdue and payable by the copper mining companies in distress to the national government. Pursuant to this LOI, then Minister of EneHon. Geronimo Velasco, issued Memorandum Circular No. 84-11-22 advising the oil companies that Atlas Consolidated Mining Corporatand Marcopper Mining Corporation are among those declared to be in distress.

n denying the claims arising from sales to ATLAS and MARCOPPER, the COA, in its 18 August 1989 letter to Executive Director Wenceslade la Paz, states that "it is our opinion that LOI 1416 which implements the exemption from payment of OPSF imposts as effected by Ohas no legal basis;" 42 in its Decision No. 1171, it ruled that "the CPI (CALTEX) (Caltex) has no authority to claim reimbursement for uncollected impost because LOI 1416 dated July 17, 1984, . . . was issued when OPSF was not yet in existence and could not hcontemplated OPSF imposts at the time of its formulation." 43 It is further stated that: "Moreover, it is evident that OPSF was not creato aid distressed mining companies but rather to help the domestic oil industry by stabilizing oil prices."

n sustaining COA's stand, respondents vigorously maintain that LOI 1416 could not have intended to exempt said distressed mincompanies from the payment of OPSF dues for the following reasons:

a. LOI 1416 granting the alleged exemption was issued on July 17, 1984. P.D. 1956 creating the OPSF was promulgated on Octo10, 1984, while E.O. 137, amending P.D. 1956, was issued on February 25, 1987.

b. LOI 1416 was issued in 1984 to assist distressed copper mining companies in line with the government's effort to preventcollapse of the copper industry. P.D No. 1956, as amended, was issued for the purpose of minimizing frequent price changes brought abby exchange rate adjustments and/or changes in world market prices of crude oil and imported petroleum product's; and

c. LOI 1416 caused the "suspension of all taxes, duties, fees, imposts and other charges, whether direct or indirect, due and payby the copper mining companies in distress to the Notional and Local Governments . . ." On the other hand, OPSF dues are not payabl(sic) distressed copper companies but by oil companies. It is to be noted that the copper mining companies do not pay OPSF dues. Rath

such imposts are built in or already incorporated in the prices of oil products. 44

Lastly, respondents allege that while LOI 1416 suspends the payment of taxes by distressed mining companies, it does not acco rd petitiothe same privilege with respect to its obligation to pay OPSF dues.

We concur with the disquisitions of the respondents. Aside from such reasons, however, it is apparent that LOI 1416 was never publishethe Official Gazette 45 as required by Article 2 of the Civil Code, which reads:

Laws shall take effect after fifteen days following the completion of their publication in the Official Gazette, unless it is otherwise provid. .

n applying said provision, this Court ruled in the case of Tañada vs. Tuvera: 46



WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all unpublished presidential issuances which aregeneral application, and unless so published they shall have no binding force and effect.

Resolving the motion for reconsideration of said decision, this Court, in its Resolution promulgated on 29 December 1986, 47 ruled:

We hold therefore that all statutes, including those of local application and private laws, shall be published as a condition for teffectivity, which shall begin fifteen days after publication unless a different effectivity date is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powwhenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules

regulations must also be published if their purpose is to enforce or implement existing laws pursuant also to a valid delegation.

xxx xxx xxx

WHEREFORE, it is hereby declared that all laws as above defined shall immediately upon their approval, or as soon thereafter as possbe published in full in the Official Gazette, to become effective only after fifteen days from their publication, or on another date specifiethe legislature, in accordance with Article 2 of the Civil Code.

LOI 1416 has, therefore, no binding force or effect as it was never published in the Official Gazette after its issuance or at any time afterdecision in the abovementioned cases.

Article 2 of the Civil Code was, however, later amended by Executive Order No. 200, issued on 18 June 1987. As amended, the sprovision now reads:

Laws shall take effect after fifteen days following the completion of their publication either in the Official Gazette or in a newspapegeneral circulation in the Philippines, unless it is otherwise provided.

We are not aware of the publication of LOI 1416 in any newspaper of general circulation pursuant to Executive Order No. 200.

Furthermore, even granting arguendo that LOI 1416 has force and effect, petitioner's claim must still fail. Tax exemptions as a general rare construed strictly against the grantee and liberally in favor of the taxing authority. 48 The burden of proof rests upon the party claimexemption to prove that it is in fact covered by the exemption so claimed. The party claiming exemption must therefore be exprementioned in the exempting law or at least be within its purview by clear legislative intent.

n the case at bar, petitioner failed to prove that it is entitled, as a consequence of its sales to ATLAS and MARCOPPER, to cl

reimbursement from the OPSF under LOI 1416. Though LOI 1416 may suspend the payment of taxes by copper mining companies, it dnot give petitioner the same privilege with respect to the payment of OPSF dues.

V. As to COA's disallowance of the amount of P130,420,235.00, petitioner maintains that the Department of Finance has still to isa final and definitive ruling thereon; accordingly, it was premature for COA to disallow it. By doing so, the latter acted beyondjurisdiction. 49 Respondents, on the other hand, contend that said amount was already disallowed by the OEA for failure to substantiat50 In fact, when OEA submitted the claims of petitioner for pre-audit, the abovementioned amount was already excluded.

An examination of the records of this case shows that petitioner failed to prove or substantiate its contention that the amounP130,420,235.00 is still pending before the OEA and the DOF. Additionally, We find no reason to doubt the submission of respondents said amount has already been passed upon by the OEA. Hence, the ruling of respondent COA disapproving said claim must be upheld.

V. The last issue to be resolved in this case is whether or not the amounts due to the OPSF from petitioner may be offset aga

petitioner's outstanding claims from said fund. Petitioner contends that it should be allowed to offset its claims from the OPSF againscontributions to the fund as this has been allowed in the past, particularly in the years 1987 and 1988. 51

Furthermore, petitioner cites, as bases for offsetting, the provisions of the New Civil Code on compensation and Section 21, Book V, Titleof the Revised Administrative Code which provides for "Retention of Money for Satisfaction of Indebtedness to Government." 52 Petitioalso mentions communications from the Board of Energy and the Department of Finance that supposedly authorize compensation.

Respondents, on the other hand, citing Francia vs. IAC and Fernandez, 53 contend that there can be no offsetting of taxes against the clathat a taxpayer may have against the government, as taxes do not arise from contracts or depend upon the will of the taxpayer, but mposed by law. Respondents also allege that petitioner's reliance on Section 21, Book V, Title I-B of the Revised Administrative Cod

misplaced because "while this provision empowers the COA to withhold payment of a government indebtedness to a person who is andebted to the government and apply the government indebtedness to the satisfaction of the obligation of the person to the governm

ike authority or right to make compensation is not given to the private person." 54 The reason for this, as stated in Commissione



nternal Revenue vs. Algue, Inc., 55 is that money due the government, either in the form of taxes or other dues, is its lifeblood and shobe collected without hindrance. Thus, instead of giving petitioner a reason for compensation or set-off, the Revised Administrative Cmakes it the respondents' duty to collect petitioner's indebtedness to the OPSF.

Refuting respondents' contention, petitioner claims that the amounts due from it do not arise as a result of taxation because "P.D. 19amended, did not create a source of taxation; it instead established a special fund . . .," 56 and that the OPSF contributions do not go togeneral fund of the state and are not used for public purpose, i.e., not for the support of the government, the administration of law, or payment of public expenses. This alleged lack of a public purpose behind OPSF exactions distinguishes such from a tax. Hence, the rulinthe Francia case is inapplicable.

Lastly, petitioner cites R.A. No. 6952 creating the Petroleum Price Standby Fund to support the OPSF; the said law provides in part that:

Sec. 2. Application of the fund shall be subject to the following conditions:

xxx xxx xxx

(3) That no amount of the Petroleum Price Standby Fund shall be used to pay any oil company which has an outstanding obligatiothe Government without said obligation being offset first, subject to the requirements of compensation or offset under the Civil Code.

We find no merit in petitioner's contention that the OPSF contributions are not for a public purpose because they go to a special fund ofgovernment. Taxation is no longer envisioned as a measure merely to raise revenue to support the existence of the government; taxes be levied with a regulatory purpose to provide means for the rehabilitation and stabilization of a threatened industry which is affected wpublic interest as to be within the police power of the state. 57 There can be no doubt that the oil industry is greatly imbued with pu

nterest as it vitally affects the general welfare. Any unregulated increase in oil prices could hurt the lives of a majority of the people cause economic crisis of untold proportions. It would have a chain reaction in terms of, among others, demands for wage increases upward spiralling of the cost of basic commodities. The stabilization then of oil prices is of prime concern which the state, via its popower, may properly address.

Also, P.D. No. 1956, as amended by E.O. No. 137, explicitly provides that the source of OPSF is taxation. No amount of semantical jugglecould dim this fact.

t is settled that a taxpayer may not offset taxes due from the claims that he may have against the government. 58 Taxes cannot besubject of compensation because the government and taxpayer are not mutually creditors and debtors of each other and a claim for tas not such a debt, demand, contract or judgment as is allowed to be set-off. 59

We may even further state that technically, in respect to the taxes for the OPSF, the oil companies merely act as agents for the Governmn the latter's collection since the taxes are, in reality, passed unto the end-users –– the consuming public. In that capacity, the petitioas one of such companies, has the primary obligation to account for and remit the taxes collected to the administrator of the OPSF. Tduty stems from the fiduciary relationship between the two; petitioner certainly cannot be considered merely as a debtor. In resptherefore, to its collection for the OPSF vis-a-vis its claims for reimbursement, no compensation is likewise legally feasible. Firstly, Government and the petitioner cannot be said to be mutually debtors and creditors of each other. Secondly, there is no proof tpetitioner's claim is already due and liquidated. Under Article 1279 of the Civil Code, in order that compensation may be proper, necessary that:

(1) each one of the obligors be bound principally, and that he be at the same time a principal creditor of the other;

(2) both debts consist in a sum of :money, or if the things due are consumable, they be of the same kind, and also of the same quf the latter has been stated;

(3) the two (2) debts be due;

(4) they be liquidated and demandable;

(5) over neither of them there be any retention or controversy, commenced by third persons and communicated in due time todebtor.

That compensation had been the practice in the past can set no valid precedent. Such a practice has no legal basis. Lastly, R.A. No. 6does not authorize oil companies to offset their claims against their OPSF contributions. Instead, it prohibits the government from paany amount from the Petroleum Price Standby Fund to oil companies which have outstanding obligations with the government, withsaid obligation being offset first subject to the rules on compensation in the Civil Code.



WHEREFORE, in view of the foregoing, judgment is hereby rendered AFFIRMING the challenged decision of the Commission on Auexcept that portion thereof disallowing petitioner's claim for reimbursement of underrecovery arising from sales to the National PoCorporation, which is hereby allowed.

With costs against petitioner.

SO ORDERED.

G.R. No. 140563. July 14, 2000]

DANTE M. POLLOSO, petitioner, vs. HON. CELSO D. GANGAN, Chairman, COMMISSION ON AUDIT, HON. RAUL C. FLORES, COMMISSIONCOMMISSION ON AUDIT, HON. EMMANUEL M. DALMAN, COMMISSIONER, COMMISSION ON AUDIT. respondents.

D E C I S I O N

KAPUNAN, J.:

Before this Court is a petition for review from the decision of the Commission on Audit (COA), dated 28 September 1999 of hepetitioner Dante M. Polloso, from the disallowance by the COA Unit Auditor of the amount of P283,763.39 representing payment of leservices rendered by Atty. Benemerito A. Satorre to the National Power Corporation (NPC).

The facts of the case are undisputed.

n 1994, the National Power Corporation (NPC), represented by its President Dr. Francisco L. Viray entered into a service contract with ABenemerito A. Satorre. Under said contract, Satorre was to perform the following services for the Leyte-Cebu and Leyte-Lunterconnection Projects of the NPC:

1.....Provide services on administrative and legal matters.

2.....Facilitate, coordinate between the Office of the Project Director and the Project Manager, and the Office of the Regional Legal Couand other NPC Offices, Local Government Units and Agencies of Government involving administrative cases and legal problems.

3.....Provide direction, supervision, coordination and control of right-of-way activities in the project.

4.....Perform other pertinent services as may be assigned him by the Project Director and Project Manager from time to time.[1]

The contract provided that in consideration for services rendered, Satorre would receive a monthly salary P21,749.00 plus representaand transportation allowance of P5,300.[2]

On 12 January 1995, Unit Auditor Alexander A. Tan, NPC-VRC, Cebu City issued Notice of Disallowance No. 95-0001-135-94 for the paymof the services rendered by Atty. Satorre for the period covering March to December 1995 in the total amount of P283,763.39. following reasons were cited for said disallowance:

1)....The contract for services did not have the written conformity and acquiescence of the Solicitor General or the Corporate Counsel concurrence of the Commission on Audit as required under COA Circular No. 86-255 dated April 2, 1986.

2)....The contract was not supported with Certificate of Availability of Funds as required under Sec. 86 of P.D. 1445.

3)....The contract was not submitted to the Civil Service Commission for final review and was not forwarded to the Compensation Position Confirmation and Classification Bureau, DBM for appropriate action as required in CSC MC # 5 Series of 1985.[3]

Accordingly, the following were held to be personally liable for the amounts due to Atty. Satorre: Dr. Francisco Viray, NPC contracting paManolo C. Marquez, for certifying the claim as necessary, lawful and authorized; Andrea B. Roa and Romeo Gallego, for verifying supporting documents to be complete and proper; Jesus Aliño, for reviewing the supporting documents to be complete and proper; DaM. Polloso, Project Manager II, Leyte-Cebu Interconnection Project (LCIP), National Power Corporation-Visayas Regional Center, approving the claim; and Benemerito Satorre, as the payee.[4]

On 27 January 1995, only petitioner Dante Polloso submitted a letter-explanation refuting the alleged violation contained in the NoticDisallowance and sought reconsideration thereof.[5] This was denied by the Unit Auditor in a resolution, dated 30 March 1995.[6]



On 10 October 1995, petitioner appealed the denial of the Unit Auditor to the Regional Director, COA Regional Office No. VII;[7] the ladenied the same.[8]

On 29 June 1998, a petition for review was filed before the Commission Proper, Commission on Audit, Central Office.[9] On 29 Octo1999, the COA issued the decision assailed before this Court. The dispositive portion thereof, reads:

Thus, it is crystal clear from the aforequoted provision of law and regulations that the service contract entered into by and between National Power Corporation and Atty. Satorre is in contravention thereof.

Upon the foregoing considerations, the instant appeal of MR. DANTE M. POLLOSO, has to be, as it is hereby denied. Accordingly,

disallowance of P283,763.39 is hereby affirmed.[10]

Hence, this appeal, petitioner raising the following issues:

DOES THE PROHIBITION UNDER COA CIRCULAR NO. 86-255 DATED APRIL 2, 1986 AND SEC. 212 OF THE GOVERNMENT ACCOUNTING AAUDITING MANUAL IMPOSED ON GOVERNMENT AGENCIES FROM HIRING PRIVATE LAWYERS "TO HANDLE THEIR LEGAL CASES" APPLY TLAWYER HIRED BY VIRTUE OF A SERVICE CONTRACT BUT WHO ACTUALLY HANDLE PURELY RIGHT-OF-WAY MATTERS (EXCLUDHANDLING OF COURT CASES)?

I

WILL COA CIRCULAR NO. 86-255 DATED APRIL 2, 1986 AND SEC. 212, VOLUME I OF THE GOVERNMENT ACCOUNTING AND AUDITMANUAL OPERATE TO RESTRICT THE PRACTICE OF THE LAW PROFESSION AND THEREFORE REPUGNANT TO SEC. 5, ARTICLE VII OF THE 1PHILIPPINE CONSTITUTION?

II

DOES SECTION 38, CHAPTER 9, BOOK I OF EXECUTIVE ORDER NO. 292, OTHERWISE KNOWN AS THE ADMINISTRATIVE CODE OF 1987 APTO PETITIONER FOR HAVING ACTED IN GOOD FAITH AND WITHOUT MALICE AND MERELY IMPLEMENTED A VALID CONTRACT ENTENTO BY THE PRESIDENT OF THE NATIONAL POWER CORPORATION?

V

DOES THE PRINCIPLE OF "QUANTUM MERUIT" APPLY TO THE SERVICES RENDERED BY ATTY. SATORRE WHICH BENEFITTED THE NATIOPOWER CORPORATION?[11]

The petition is without merit.

n the main, petitioner posits that the phrase "handling of legal cases" should be construed to mean as conduct of cases or handlingcourt cases or litigation and not to other legal matters, such as legal documentation, negotiations, counseling or right of way matters.

To test the accuracy of such an interpretation, an examination of the subject COA Circular is in order:

SUBJECT: Inhibition against employment by government agencies and instrumentalities, including government-owned or controcorporations, of private lawyers to handle their legal cases.

t has come to the attention of this Commission that notwithstanding restrictions or prohibitions on the matter under existing laws, cergovernment agencies, instrumentalities, and government-owned and/or controlled corporations, notably government banking financing institutions, persist in hiring or employing private lawyers or law practitioners to render legal services for them and/or to hantheir legal cases in consideration of fixed retainer fees, at times in unreasonable amounts, paid from public funds. In keeping with retrenchment policy of the present administration, this Commission frowns upon such a practice.

Accordingly, it is hereby directed that, henceforth, the payment out of public funds of retainer fees to private law practitioners who arehired or employed without the prior written conformity and acquiescence of the Office of the Solicitor General or the GovernmCorporate Counsel, as the case may be, as well as the written concurrence of the Commission on Audit shall be disallowed in audit andsame shall be a personal l iability of the officials concerned. [underscoring supplied]

What can be gleaned from a reading of the above circular is that government agencies and instrumentalities are restricted in their hirin

private lawyers to render legal services or handle their cases. No public funds will be disbursed for the payment to private lawyers un



prior to the hiring of said lawyer, there is a written conformity and acquiescence from the Solicitor General or the Government CorporCounsel.

Contrary to the view espoused by petitioner, the prohibition covers the hiring of private lawyers to render any form of legal servicemakes no distinction as to whether or not the legal services to be performed involve an actual legal controversy or court litigatPetitioner insists that the prohibition pertains only to "handling of legal cases," perhaps because this is what is stated in the title ofcircular. To rely on the title of the circular would go against a basic rule in statutory construction that a particular clause should notstudied as a detached and isolated expression, but the whole and every part of the statute must be considered in fixing the meaning ofof its part.[12] Petitioner, likewise, insists that the service contract in question falls outside the ambit of the circular as what is becurtailed is the payment of retainer fees and not the payment of fees for legal services actually rendered.

A retainer fee has been defined as a "preliminary fee to an attorney or counsel to insure and secure his future services, and induce himact for the client. It is intended to remunerate counsel for being deprived, by being retained by one party, of the opportunity of renderservices to the other and of receiving pay from him, and payment of such fee, in the absence of an express understanding to the contrarneither made nor received in payment of the services contemplated; its payment has no relation to the obligation of the client to payattorney for the services for which he has retained him to perform."[13] To give such a technical interpretation to the term "retainer fewould go against the purpose of the circular and render the same ineffectual. In his resolution, Unit Auditor Alexander Tan expoundedthe purpose of the circular, as enunciated therein:

On the claim that COA Circular 86-255 is not applicable in this case because the inhibition provided for in said Circular relates to handling of legal cases of a government agency and that the contractor was not hired in that capacity but to handle legal matters nvolving right-of-way, it is maintained that the contracted service falls within the scope of the inhibition which clearly includes "the h

or employing private lawyers or law practitioners to render legal ser vices for them and/or to handle their legal cases…" Moreover,

mportant to mention that the intention of said Circular is to curb the observed and persistent violation of existing laws and regulationcluding CSC MC # 5 series of 1985 pertaining to the employment of private lawyers on a contractual basis in government agencies whnvolves the disbursement of public funds by subjecting the same to the conformity and concurrence requirements of said Circular. Be

so, the manner of agreed payment or consideration, whether termed as a fixed retainer basis or a fixed contract price patterned afexisting salary scale of existing and comparable positions in NPC-VRC is immaterial as both still involve the outlay of public funds and the contractual employment/hiring of a private lawyer.

Hence, while the circular uses the phrase "retainer fees," such should not be given its technical interpretation but should mean any "fpaid for any legal service rendered. As pointed out by the Office of the Solicitor General, any interpretation of subject circular to contrary would open the floodgate to future circumventions thereof by the simple expedience of hiring private lawyers to service the lneeds of the government not on a retainer basis but by way of service contract akin to that which Atty. Satorre and the NPC entento.[14] No dictum is more fundamental in statutory interpretation than that the intent of the law must prevail over the letter thereof,

whatever is within the spirit of the statute is within the statute, since adherence to the letter would result in an absurdity, injustice contradictions and would defeat the plain and vital purpose of the statute.[15]

t bears repeating that the purpose of the circular is to curtail the unauthorized and unnecessary disbursement of public funds to privawyers for services rendered to the government. This is in line with the Commission on Audit’s constitutional mandate to pro mul

accounting and auditing rules and regulations including those for the prevention and disallowance of irregular, unnecessary, excessextravagant or unconscionable expenditures or uses of government funds and properties.[16] Having determined the intent of the law,Court has the imperative duty to give it effect even if the policy goes beyond the letter or words of the statute.[17]

Hence, as the hiring of Atty. Satorre was clearly done without the prior conformity and acquiescence of the Office of the Solicitor Generathe Government Corporate Counsel, as well as the written concurrence of the Commission on Audit, the payment of fees to Atty. Satowas correctly disallowed in audit by the COA.

Thus being said, it is no longer necessary to delve into whether or not the hiring of Atty. Satorre is in accord with the rules of the CService Commission.

Petitioner’s claim that the Circular is unconstitutional for being an invalid restriction to the practice of the law profession, is clearly bereany merit. The Government has its own counsel, which is the Office of the Solicitor General headed by the Solicitor General,[18] whileOffice of the Government Corporate Counsel (OGCC) acts as the principal law office of the government-owned or controcorporations.[19] It is only in special cases where these government entities may engage the services of private lawyers because of texpertise in certain fields. The questioned COA circular simply sets forth the prerequisites for a government agency instrumentality in hia private lawyer, which are reasonable safeguards to prevent irregular, unnecessary, excessive, extravagant or unconscionaexpenditures or uses of government funds and properties. We fail to see how the restrictions contained in the COA circular canconsidered as a curtailment on the practice of the legal profession.



Anent petitioner’s argument that he cannot be held liable for effecting payment of the disallowed amount because he is not pr ivy toservice contract, we find the same to be unmeritorious. This is because petitioner’s liability arose from the fact that as project manager

approved the said claim. In addition, his assertion that a refusal on his part to certify payment of the same would subject him to crimand civil liabilities cannot hold water simply because it was his duty not to approve the same for payment upon finding that such rregular and in contravention of COA Circular No. 86-255, dated 2 April 1986.

We cannot grant the prayer of the petitioner that Atty. Satorre should be compensated based on the principle of quantum meruit, onground that the government will be unjustly enriched at the expense of another. We do not deny that Atty. Satorre has indeed rendeegal services to the government. However to allow the disbursement of public funds to pay for his services, despite the absence

requisite consent to his hiring from the OSG or OGCC would precisely allow circumvention of COA Circular No. 86-255. In any event, it is

Atty. Satorre who is liable to return the money already paid him, rather the same shall be the responsibility of the officials concernamong whom include herein petitioner.

WHEREFORE, the petition is hereby DENIED for lack of showing that the respondents committed a reversible error.

SO ORDERED.

G.R. No. 88435 January 16, 2002

DEVELOPMENT BANK OF THE PHILIPPINES, JESUS P. ESTANISLAO, DOLORES A. SANTIAGO, LYNN H. CATUNCAN, NORMA O. TERREL, MANTONIA G. REBUENO, petitioners,vs.COMMISSION ON AUDIT, respondent.

CARPIO, J.:

The Case

This is a petition for review on certiorari1 of the letter-decision of the Chairman of the Commission on Audit2 ("COA" for brevity) andetter-decision of the COA en banc3, prohibiting the Development Bank of the Philippines ("DBP" for brevity) from hiring a private exte

auditor. This petition raises a question of first impression, whether or not the constitutional power of the COA to examine and audit DBP is exclusive and precludes a concurrent audit of the DBP by a private external auditor.

The Antecedent Facts

n 1986, the Philippine government, under the administration of then President Corazon C. Aquino, obtained from the World BankEconomic Recovery Loan ("ERL" for brevity) in the amount of US$310 million. The ERL was intended to support the recovery of Philippine economy, at that time suffering severely from the financial crisis that hit the country during the latter part of the Marcos regim

As a condition for granting the loan, the World Bank required the Philippine government to rehabilitate the DBP which was then saddwith huge non-performing loans. Accordingly, the government committed to rehabilitate the DBP to make it a viable and self-sustaifinancial institution in recognition of its developmental role in the economy. The DBP was expected to continue "providing principmedium and long-term financing to projects with risks higher than the private sector may be willing to accept under reasonable termThe government's commitment was embodied in the Policy Statement for the Development Bank of the Philippines which stated in part

"4. Furthermore, like all financial institutions under Central Bank supervision, DBP will now be required to have a private external audit, ts Board of Directors will now be opened to adequate private sector representation. It is hoped that with these commitments, DBP

avoid the difficulties of the past and can function as a competitive and viable financial institution within the Philippine financial system

(Emphasis supplied)

On November 28, 1986, the Monetary Board adopted Resolution No. 1079 amending the Central Bank's Manual of Regulations for Baand other Financial Intermediaries, in line with the government's commitment to the World Bank to require a private external auditorDBP. Thus, on December 5, 1986, the Central Bank Governor issued Central Bank Circular No. 1124, providing that:

"SECTION 1. Subsection 1165.5 (Book I) is amended to read as follows:

1165.5 Financial Audit. - Each Bank, whether Government-owned or controlled or private, shall cause an annual financial audit toconducted by an external independent auditor not later than thirty (30) days after the close of the calendar year or the fiscal year adopby the bank. x x x.



x x x The Audit of a Government-owned or controlled bank by an external independent auditor shall be in addition to and without prejuto that conducted by the Commission on Audit in the discharge of its mandate under existing law. x x x.

x x x

"SECTION 3. The requirement for an annual financial audit by an external independent auditor shall extend to specialized and unigovernment banks such as the Land Bank of the Philippines and the Development Bank of the Philippines."6

On December 12, 1986, pursuant to Central Bank Circular No. 1124 and the government's commitment to the World Bank, DBP ChairmJesus Estanislao wrote the COA seeking approval of the DBP's engagement of a private external auditor in addition to the COA.7

On January 2, 1987, to formalize its request for the ERL, the Philippine government sent the World Bank a letter assuring the World Bthat pursuant to Central Bank Circular No. 1124, "all Banks, including government banks, shall be fully audited by external independauditors x x x in addition to that provided by the Commission on Audit." The letter was signed by the Central Bank Governor and Ministers of Finance, Trade and Industry, and Economic Planning of the Philippine government.8

On January 8, 1987, the Philippine government and World Bank negotiating panels reached final agreement on the private audit of the Das follows:

"13. With respect to the draft Policy Statement, it was agreed that Sections 4, 7 and 11 would be amended as follows:

x x x (iii) Section 11 should in line with the letter of Development Policy, confirm that the external independent audits would comme

with a balance sheet audit as of December 31, 1986 and a full financial audit, including income statements, starting with the period July December 31, 1986. A copy of COA's letter (referred to in par. 1, a draft of which is attached as Annex VIII) regarding DBP's appointmena private external auditor will be sent to the Bank before the distribution of the loan documents to the Bank's Board, along with a copthe scope of audit as approved by COA and satisfactory to the Bank.

With regard to the scope of the audit to be undertaken by the private external auditors, the terms of reference which will be issued toselected auditors should be generally consistent with the attached model terms of reference for financial audits (Annex IX). These genterms of reference were discussed during negotiations and form a part of the World Bank's guidelines for financial information on finannstitutions."9

On January 20, 1987, then COA Chairman Teofisto Guingona, Jr. replied to the December 12, 1986 letter of the DBP Chairman. The CChairman's reply stated that:

"x x x the Commission on Audit (COA) will interpose no objection to your engagement of a private external auditor as required byEconomic Recovery Program Loan Agreements of 1987 provided that the terms for said audit are first reviewed and approved by Commission."10

The following day, the COA Chairman also informed the Consultant of the Central Bank that the COA interposed no objection to proposed scope of audit services to be undertaken by the private external auditors to be engaged by the DBP.11

On February 18, 1987, the Board of Directors of the DBP approved the hiring of Joaquin Cunanan & Co. as the DBP's private external audfor calendar year 1986 as required by Central Bank Circular No. 1124 and the World Bank. The DBP Board of Directors placed a ceilingthe amount of reimbursable out-of-pocket expenses that could be charged by the private auditor.12

On February 23, 1987, the World Bank President, in his Report to the Bank's Executive Directors on the Philippine government's applica

for the ERL, certified that the Philippine government was complying with the requirement of a private external auditor. The World BPresident's certification stated that:

"74. Accounting and Auditing. All banks both government and private are now subject to accounting and auditing standards as establisby the Central Bank. To ensure full public accountability, the Monetary Board now requires that all government banks be subject to annaudits by independent private auditing firms, in addition to those normally undertaken by the Government's Commission on Audit. DBPPNB have already selected private auditors, and audited accounts for 1986 and 1987 will be a requirement for the releases of the secand third tranches, respectively, of the ERL."13

However, a change in the leadership of the COA suddenly reversed the course of events. On April 27, 1987, the new COA ChairmEufemio Domingo, wrote the Central Bank Governor protesting the Central Bank's issuance of Circular No. 1124 which allegedly encroacupon the COA's constitutional and statutory power to audit government agencies. The COA Chairman's letter informed the Governor tha



"This Commission hereby registers its strong objection to that portion of the CBP Circular No. 1124 which requires government bankengage private auditors in addition to that conducted by the Commission on Audit, and urges the immediate amendment thereof. It is position of this Commission that the said requirement: (a) infringes on Article IX-D of the Philippine Constitution; (b) violates Section 26 32 of the Government Auditing Code of the Philippines; (c) exposes the financial programs and strategies of the Philippine Governmenhigh security risks; (d) allows the unnecessary and unconscionable expenditure of government funds; and (e) encourages unethencroachment among professionals."14

On May 13, 1987, after learning that the DBP had signed a contract with a private auditing firm for calendar year 1986, the new CChairman wrote the DBP Chairman that the COA resident auditors were under instructions to disallow any payment to the private audwhose services were unconstitutional, illegal and unnecessary.15

On July 1, 1987, the DBP Chairman sent to the COA Chairman a copy of the DBP's contract with Joaquin Cunanan & Co., signed four monearlier on March 5, 1987. The DBP Chairman's covering handwritten note sought the COA's concurrence to the contract.16

During the pendency of the DBP Chairman's note-request for concurrence, the DBP paid the billings of the private auditor in the toamount of P487,321.1417 despite the objection of the COA. On October 30, 1987, the COA Chairman issued a Memorandum disallowthe payments, and holding the following persons personally liable for such payment:

"SVP Fajardo who approved the voucher for payment; VP Santiago who certified that the expenditure was authorized, necessary awful; SM Terrel, Catuncan and Rebueno who signed the checks; and the head of office who signed the contract and who is immedia

and primarily responsible for the funds of the Bank."18

On January 19, 1988, the DBP Chairman wrote the COA Chairman seeking reconsideration of the COA Chairman's Memorandum

However, the DBP received no response until August 29, 1988 when the COA Chairman issued a letter-decision denying petitioner's Jul1987 note-request for concurrence. The letter-decision, one of the two COA decisions assailed in this petition, declared in part as follows

"(a) In the letter to the Central Bank Governor x x x, this Commission clearly stated its non-negotiable stand on the issue in the followterms:

x x x the very essence of the Commission on Audit as an independent constitutional commission in the total scheme of Government, isingular function to '[E]xamine, audit, and settle x x x all accounts pertaining to x x x the Government, or any of its subdivisions, xncluding government-owned or controlled corporations.' To allow private firms to interfere in this governmental audit domain would b

derogate the Constitutional supremacy of State audit as the Government's guardian of the people's treasury, and as the prime advocateconomy in the use of government resources.'

x x x

"(c) In the letter to the Secretary of Finance dated January 28, 1988 x x x, this Commission maintains:

1. 'COA is in no way prepared to permit 'use of private auditors' except insofar as the law allows, which is 'to deputize and retain in name of the Commission such certified public accountants and other licensed professionals not in the public service as it may denecessary to assist government auditors in undertaking specialized audit engagements' (Sec. 31, PD No 1445). Outside of this, Commission does not consider the matter of hiring private auditing firms a negotiable matter, and this we want to emphasize to avfuture embarrassment to the Government. The Commission on Audit is a constitutionally-created independent and separate body, neither Congress nor the Executive Department has the power to detract from its mandated duties, functions, and powers.

2. 'Since the proceeds of the proposed loan accrue to the Republic of the Philippines as borrower, it follows that its accounting and amust comply with the laws of this country. To specify in the Loan Agreement that the loan account, once released to the Government, s

be 'audited by independent auditors acceptable to the Bank' is not only to entirely by-pass this Commission but to ignore as well Constitution and the laws of this country which vests in this Commission the 'power, authority, and duty to examine, audit, and settlaccounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property x x x pertaining to the Governme(Sec. 2, Art. IX-D, Phil. Const.).1âwphi1.nêt

Such brazen disregard of the fundamental law of this country cannot be countenanced by this Commission.'

"In view of all the foregoing, you are hereby advised:

"1. To desist from proceeding with the audit of Joaquin Cunanan & Co. of the Bank's financial statements for the year ending December1987.



"2. To refrain from making any payments out of the funds of the Development Bank of the Philippines, in the event that such audit servhave already been rendered, attention being invited to the following provisions of the Government Auditing Code of the Philippines:

Sec. 108. General liability for unlawful expenditures – Expenditures of government funds or uses of government property in violation ofor regulations shall be a personal liability of the official or employee found to be directly responsible therefore.'

"3. To restitute, within thirty (30) days from receipt hereof, the total amount of P513,549.24 under CV Nos. 9136, 5014, 6201 and 4082professional services rendered in the audit of the 1986 financial operations of the Bank. Pursuant to the aforequoted provisions of lsuch unlawful expenditure is the personal liability of the official directly responsible therefore.

"Please be guided accordingly."20

On September 26, 1988, the DBP Chairman appealed the letter-decision to the COA en banc. On May 20, 1989, the COA en banc, in a letdecision, denied the DBP's appeal. This letter-decision, now also assailed by the DBP, held that:

"Upon a circumspect evaluation of the grounds upon which your instant request is predicated, this Commission finds the same to be deof merit. As hereunder demonstrated, the justifications offered do not inspire rational belief in the mind of this Commission.

"First, it bears stress that CB Circular No. 1124, series of 1986, which has earlier been shown to be constitutionally and legally infirm, canby any means possess any binding and conclusive effect upon this Commission and, hence, may not be properly invoked in support of nstant appeal.

"Secondly, it was not the International Bank for Reconstruction and Development which required the audit of government banks by priv

auditing firm, but the Central Bank itself.

"Thirdly, insofar as this Commission is concerned, PD 2029 is an anachronism of sorts if viewed in the light of the present Constitutrecognizing this Commission as the supreme and exclusive audit institution of the government. This is necessarily implicit from the banguage of Section 2(1), Article IX-D thereof which, despite the absence of the qualifying adjective "exclusive" that anyway would b

surplusage, ought to be reasonably construed as vesting in this Commission the "power, authority, and duty" to audit all governmaccounts to the exclusion of any other person or entity, whether in the public or the private sector. Expressio unius est exclusio alteriucontrary interpretation, such as that being pressed upon this Commission, would reduce this constitutional ordinance to an absur(reductio ad absurdum) as it thereby would give rise to the rather confusing spectacle, as it were, of a government agency or corporatbeing audited not only by this Commission but also and in addition thereto by one or two or several private accounting firms – certainsituation never intended by the framers of the Constitution.

"Lastly, while this Commission has not lost sight of the letter of then COA Chairman Guingona, Jr. to the DBP Chairman, dated January1987, it has opted to be guided and influenced by the more persuasive and controlling COA Circular No. 860254 dated March 24, 19which in categorical and precise terms ordained that:

Accordingly, by way of reassertion and reaffirmation of its primary audit jurisdiction, as herein above defined, the Commission on Ahereby issues the following directives:

1. Any ongoing audit of a government-owned and/or controlled corporation or any of its subsidiaries or corporate offsprings beconducted by a private auditor or accounting firm shall cease and terminate on April 15, 1986. Henceforth, from and after said date, audit of said corporate entity shall be undertaken solely and exclusively by the Commission on Audit. x x x.'

"Premises considered, it is regretted that your instant request for reconsideration has to be, as it is hereby, denied."21

Hence, on June 14, 1989 the DBP filed this petition for review with prayer for a temporary restraining order, assailing the two COA letdecisions for being contrary to the Constitution and existing laws. On June 15, 1989 this Court issued a temporary restraining ordirecting the COA to cease and desist from enforcing its challenged letter-decisions. The Office of the Solicitor General, in a Manifestatdated October 18, 1989, declined to appear on behalf of the COA on the ground that the Solicitor General was "t aking a position adversthat of the COA." Consequently, a private counsel on pro bono basis represented the COA.

The Issues

The DBP's petition raises the following issues:

1. Does the Constitution vest in the COA the sole and exclusive power to examine and audit government banks so as to prohibit concuraudit by private external auditors under any circumstance?



2. Is there an existing statute that prohibits government banks from hiring private auditors in addition to the COA? If there is none, is than existing statute that authorizes government banks to hire private auditors in addition to the COA?

3. If there is no legal impediment to the hiring by government banks of a private auditor, was the hiring by the DBP of a private auditothe case at bar necessary, and were the fees paid by DBP to the private auditor reasonable, under the circumstances?

The Court's Ruling

The DBP's petition is meritorious.

First Issue: Power of COA to Audit under the Constitution

The resolution of the primordial issue of whether or not the COA has the sole and exclusive power to examine and audit government banvolves an interpretation of Section 2, Article IX-D of the 1987 Constitution. This Section provides as follows:

"Sec. 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaining to revenue and receipts of, and expenditures or uses of funds and property, owned and held in trust by, or pertaining to, the Governmenany of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters, x x

"(2) The Commission shall have the exclusive authority, subject to the limitations in this Article, to define the scope of its audit examination, establish the techniques and methods required therefore, and promulgate accounting and auditing rules and regulationcluding those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures

uses of government funds and properties." (Emphasis supplied)

The COA vigorously asserts that under the first paragraph of Section 2, the COA enjoys the sole and exclusive power to examine and aall government agencies, including the DBP. The COA contends this is similar to its sole and exclusive authority, under the second paragrof the same Section, to define the scope of its audit, promulgate auditing rules and regulations, including rules on the disallowancunnecessary expenditures of government agencies. The bare language of Section 2, however, shows that the COA's power under the paragraph is not declared exclusive, while its authority under the second paragraph is expressly declared "exclusive." There is a significreason for this marked difference in language.

During the deliberations of the Constitutional Commission, Commissioner Serafin Guingona proposed the addition of the word "exclusn the first paragraph of Section 2, thereby granting the COA the sole and exclusive power to examine and audit all government agenc

However, the Constitutional Commission rejected the addition of the word "exclusive" in the first paragraph of Section 2 and Guingona forced to withdraw his proposal. Commissioner Christian Monsod explained the rejection in this manner:

"MR. MONSOD. Earlier Commissioner Guingona, in withdrawing his amendment to add "EXCLUSIVE" made a statement about preponderant right of COA.

"For the record, we would like to clarify the reason for not including the word. First, we do not want an Article that would constitudisincentive or an obstacle to private investment. There are government institutions with private investments in them, and some of thnvestors - Filipinos, as well as in some cases, foreigners - require the presence of private auditing firms, not exclusively, but concurren

So this does not take away the power of the Commission on Audit. Second, there are certain instances where private auditing mayrequired, like the listing in the stock exchange. In other words, we do not want this provision to be an unnecessary obstacle to privatizaof these companies or attraction of investments."22 (Emphasis supplied)

Shortly thereafter, Commissioner Guingona attempted to resurrect his amendment by proposing the following provision:

"Private auditing firms may not examine or audit accounts pertaining to the revenue and receipts of, and expenditures or uses of funds property owned or held in trust by or pertaining to the Government or any of its subdivisions, agencies or instrumentalities."23

Guingona argued that a private audit in addition to the COA audit would be a useless duplication and an unnecessary expense on the of government.

The Constitutional Commission also rejected this proposed provision, after Commissioner Monsod made the following explanation:

"MR. MONSOD. x x x But it is also a fact that even government agencies, instrumentalities and subdivisions sometimes borrow money fabroad. And if we are at all going to preclude the possibility of any concurrent auditing, if that is required, and insist that it is exclusively the government which can audit, we may be unnecessarily tying their hands without really accomplishing much more than wwe want. As long as the COA is there, and the COA's power cannot be eliminated by law, by decree or anything of that sort, then

government funds are protected.



As far as the question of fees is concerned, this is always negotiable. Besides, if one talks about auditing fees, these are governed by cerregulations within the auditing profession, beyond which auditing firms cannot go. Furthermore, the government can always refuse to unconscionable fees. So, that matter really is not that relevant. But I think what we want to insist on is that there should be some flexibso that a procedural requirement does not impede a substantive transaction as long as COA is there."24 (Emphasis supplied)

The rejection of Guingona's second proposal put an end to all efforts to grant the COA the sole and exclusive power to examine and agovernment agencies.

n sharp contrast, the Constitutional Commission placed the word "exclusive" to qualify the authority of the COA under the seco

paragraph of the same Section 2. The word "exclusive" did not appear in the counterpart provisions of Section 2 in the 1935 and 1Constitutions.25 There is no dispute that the COA's authority under the second paragraph of Section 2 is exclusive as the language of Constitution admits of no other meaning. Thus, the COA has the exclusive authority to decide on disallowances of unnecessary governmexpenditures. Other government agencies and their officials, as well as private auditors engaged by them, cannot in any way intrude this exclusive function of the COA.

The qualifying word "exclusive" in the second paragraph of Section 2 cannot be applied to the first paragraph which is another sub-secof Section 2. A qualifying word is intended to refer only to the phrase to which it is immediately associated, and not to a phrase distaocated in another paragraph or sub-section.26 Thus, the first paragraph of Section 2 must be read the way it appears, without the w

"exclusive", signifying that non-COA auditors can also examine and audit government agencies. Besides, the framers of the Constitutntentionally omitted the word "exclusive" in the first paragraph of Section 2 precisely to allow concurrent audit by private exte

auditors.

The clear and unmistakable conclusion from a reading of the entire Section 2 is that the COA's power to examine and audit is non-exclusOn the other hand, the COA's authority to define the scope of its audit, promulgate auditing rules and regulations, and disaunnecessary expenditures is exclusive.

Moreover, as the constitutionally mandated auditor of all government agencies, the COA's findings and conclusions necessarily prevail othose of private auditors, at least insofar as government agencies and officials are concerned. The superiority or preponderance of the Caudit over private audit can be gleaned from the records of the Constitutional Commission, as follows:

"MR. GUINGONA. Madam President, after consultation with the honorable members of the Committee, I have amended my propoamendment by deleting the word EXCLUSIVE because I was made to understand that the Commission on Audit will still have preponderant power and authority to examine, audit and settle."27 (Emphasis supplied)

The findings and conclusions of the private auditor may guide private investors or creditors who require such private audit. Governmagencies and officials, however, remain bound by the findings and conclusions of the COA, whether the matter falls under the firssecond paragraph of Section 2, unless of course such findings and conclusions are modified or reversed by the courts.

The power of the COA to examine and audit government agencies, while non-exclusive, cannot be taken away from the COA. SectioArticle IX-D of the Constitution mandates that:

"Sec. 3. No law shall be passed exempting any entity of the Government or its subsidiary in any guise whatsoever, or any investmenpublic funds, from the jurisdiction of the Commission on Audit."

The mere fact that private auditors may audit government agencies does not divest the COA of its power to examine and audit the sagovernment agencies. The COA is neither by-passed nor ignored since even with a private audit the COA will still conduct its usexamination and audit, and its findings and conclusions will still bind government agencies and their officials. A concurrent private a

poses no danger whatsoever of public funds or assets escaping the usual scrutiny of a COA audit.

Manifestly, the express language of the Constitution, and the clear intent of its framers, point to only one indubitable conclusion - the does not have the exclusive power to examine and audit government agencies. The framers of the Constitution were fully aware ofneed to allow independent private audit of certain government agencies in addition to the COA audit, as when there is a private investmn a government-controlled corporation, or when a government corporation is privatized or publicly listed, or as in the case at bar when

government borrows money from abroad.

n these instances the government enters the marketplace and competes with the rest of the world in attracting investments or loanssucceed, the government must abide with the reasonable business practices of the marketplace. Otherwise no investor or creditor wilbusiness with the government, frustrating government efforts to attract investments or secure loans that may be critical to stimumoribund industries or resuscitate a badly shattered national economy as in the case at bar. By design the Constitution is flexible enoug



meet these exigencies. Any attempt to nullify this flexibility in the instances mentioned, or in similar instances, will be ultra vires, in absence of a statute limiting or removing such flexibility.

The deliberations of the Constitutional Commission reveal eloquently the intent of Section 2, Article IX-D of the Constitution. As this Cohas ruled repeatedly, the intent of the law is the controlling factor in the interpretation of the law.28 If a law needs interpretation, the mdominant influence is the intent of the law.29 The intent of the law is that which is expressed in the words of the law, which shoulddiscovered within its four corners aided, if necessary, by its legislative history.30 In the case of Section 2, Article IX-D of the Constitutthe intent of the framers of the Constitution is evident from the bare language of Section 2 itself. The deliberations of the ConstitutioCommission confirm expressly and even elucidate further this intent beyond any doubt whatsoever.

There is another constitutional barrier to the COA's insistence of exclusive power to examine and audit all government agencies. The COclaim clashes directly with the Central Bank's constitutional power of "supervision" over banks under Section 20, Article XII of Constitution. This provision states as follows:

"Sec. 20. The Congress shall establish an independent central monetary authority, the members of whose governing board must be natuborn Filipino citizens, of known probity, integrity, and patriotism, the majority of whom shall come from the private sector. They shall be subject to such other qualifications and disabilities as may be prescribed by law. The authority shall provide policy direction in the arof money, banking, and credit. It shall have supervision over the operations of banks and exercise such regulatory powers as mayprovided by law over the operations of finance companies and other institutions performing similar functions." (Emphasis supplied)

Historically, the Central Bank has been conducting periodic and special examination and audit of banks to determine the soundness of toperations and the safety of the deposits of the public. Undeniably, the Central Bank's power of "supervision" includes the poweexamine and audit banks, as the banking laws have always recognized this power of the Central Bank.31 Hence, the COA's powe

examine and audit government banks must be reconciled with the Central Bank's power to supervise the same banks. The inevitaconclusion is that the COA and the Central Bank have concurrent jurisdiction, under the Constitution, to examine and audit governmbanks.

However, despite the Central Bank's concurrent jurisdiction over government banks, the COA's audit still prevails over that of the CenBank since the COA is the constitutionally mandated auditor of government banks. And in matters falling under the second paragrapSection 2, Article IX-D of the Constitution, the COA's jurisdiction is exclusive. Thus, the Central Bank is devoid of authority to allowdisallow expenditures of government banks since this function belongs exclusively to the COA.

Second Issue: Statutes Prohibiting or Authorizing Private Auditors

The COA argues that Sections 26, 31 and 32 of PD No. 1445, otherwise known as the Government Auditing Code of the Philippines, proh

the hiring of private auditors by government agencies. Section 26 of PD No. 1445 provides that:

"Section 26. General Jurisdiction. The authority and powers of the Commission shall extend to and comprehend all matters relatingauditing procedures, systems and controls, the keeping of the general accounts of the Government, the preservation of vouchers pertaithereto for a period of ten years, the examination and inspection of the books, records, and papers relating to those accounts; and audit and settlement of the accounts of all persons respecting funds or property received or held by them in an accountable capacitywell as the examination, audit, and settlement of all debts and claims of any sort due or owing to the Government or any of its subdivisiagencies or instrumentalities. The said jurisdiction extends to all government-owned or controlled corporations, including their subsidiaand other self-governing boards, commissions, or agencies of the Government, and as herein prescribed, including non-governmeentities subsidized by the government, those funded by donations through the government, those required to pay levies or governmshare, and those for which the government has put up a counterpart fund or those partly funded by the government."

Section 26 defines the extent and scope of the powers of the COA. Considering the comprehensive definition in Section 26, the CO

jurisdiction covers all government agencies, offices, bureaus and units, including government-owned or controlled corporations, and enon-government entities enjoying subsidy from the government. However, there is nothing in Section 26 that states, expressly or impliethat the COA's power to examine and audit government banks is exclusive, thereby preventing private audit of government agenconcurrently with the COA audit.

Section 26 is a definition of the COA's "general jurisdiction." Jurisdiction may be exclusive or concurrent. Section 26 of PD No. 1445 doesstate that the COA's jurisdiction is exclusive, and there are other laws providing for concurrent jurisdiction. Thus, Section 26 mustapplied in harmony with Section 5832 of the General Banking Law of 2000 (RA No. 8791) which authorizes unequivocally the MoneBoard to require banks to hire independent auditors. Section 58 of the General Banking Law of 2000 states as follows:

"Section 58. Independent Auditor. - The Monetary Board may require a bank, quasi-bank or trust entity to engage the services ofndependent auditor to be chosen by the bank, quasi-bank or trust entity concerned from a list of certified public accountants acceptabl

the Monetary Board. The term of the engagement shall be as prescribed by the Monetary Board which may either be on a continuing b



where the auditor shall act as resident examiner, or on the basis of special engagements; but in any case, the independent auditor shalresponsible to the bank's, quasi-bank's or trust entity's board of directors. A copy of the report shall be furnished to the Monetary Boarx x." (Emphasis supplied)

Moreover, Section 26 must also be applied in conformity with Sections 25 and 2833 of the New Central Bank Act (RA No. 7653) whauthorize expressly the Monetary Board to conduct periodic or special examination of all banks. Sections 25 and 28 of the New CenBank Act state as follows:

"Sec. 25. Supervision and Examination. The Bangko Sentral shall have supervision over, and conduct periodic or special examinationsbanking institutions x x x. (Emphasis supplied)

x x x

"Sec. 28. Examination and Fees. The supervising and examining department head, personally or by deputy, shall examine the books of evbanking institution once in every twelve (12) months, and at such other time as the Monetary Board by an affirmative vote of fivemembers may deem expedient and to make a report on the same to the Monetary Board: x x x." (Emphasis supplied)

The power vested in the Monetary Board under Section 58 of the General Banking Law of 2000, and Sections 25 and 28 of the New CenBank Act, emanates from the Central Bank's explicit constitutional mandate to exercise "supervision over the operations of banks." UnSection 4 of the General Banking Law of 2000, the term "supervision"34 is defined as follows:

"Section 4. Supervisory Powers. The operations and activities of banks shall be subject to supervision of the Bangko Sentral. "Supervisishall include the following:

x x x

4.2. The conduct of examination to determine compliance with laws and regulations if the circumstances so warrant as determined by Monetary Board;

x x x

4.4. Regular investigation which shall not be oftener than once a year from the last date of examination to determine whethernstitution is conducting its business on a safe or sound basis: Provided, That the deficiencies/irregularities found by or discovered by

audit shall immediately be addressed;

x x x." (Emphasis supplied)

Clearly, under existing laws, the COA does not have the sole and exclusive power to examine and audit government banks. The Central Bhas concurrent jurisdiction to examine and audit, or cause the examination and audit, of government banks.

Section 31 of PD No. 1445, another provision of law claimed by the COA to prohibit the hiring of private auditors by government agenprovides as follows:

"Section 31. Deputization of private licensed professionals to assist government auditors. - (1) The Commission may, when the exigenciethe service so require, deputize and retain in the name of the Commission such certified public accountants and other licenprofessionals not in the public service as it may deem necessary to assist government auditors in undertaking specialized aengagements.

"(2) The deputized professionals shall be entitled to such compensation and allowances as may be stipulated, subject to pertinent rulesregulations on compensation and fees."

According to the COA, Section 31 is the maximum extent that private auditors can participate in auditing government agencies and anytbeyond this is without legal basis. Hence, the COA maintains that the hiring of private auditors who act in their own name and opendependently of the COA is unlawful.

Section 31 is bereft of any language that prohibits, expressly or impliedly, the hiring of private auditors by government agencies. Tprovision of law merely grants authority to the COA to hire and deputize private auditors to assist the COA in the auditing of governmagencies. Such private auditors operate under the authority of the COA. By no stretch of statutory construction can this provisionnterpreted as an absolute statutory ban on the hiring of private auditors by government agencies. Evidently, the language of the law d

not support the COA's claim.



Moreover, the COA further contends that Section 32 of PD No. 1445 is another provision of law that prohibits the hiring of private auditby government agencies. Section 32 provides as follows:

"Section 32. Government contracts for auditing, accounting, and related services. (1) No government agency shall enter into any contwith any private person or firm for services to undertake studies and services relating to government auditing, including servicesconduct, for a fee, seminars or workshops for government personnel on these topics, unless the proposed contract is first submitted toCommission to enable it to determine if it has the resources to undertake such studies or services. The Commission may engage services of experts from the public or private sector in the conduct of these studies.

"(2) Should the Commission decide not to undertake the study or service, it shall nonetheless have the power to review the contrac

order to determine the reasonableness of its costs." (Emphasis supplied)

Section 32 refers to contracts for studies and services "relating to government auditing" which the COA may or may not want to underttself for a government agency. Stated another way, Section 32 speaks of studies and services that the COA may choose not to render

government agency. Obviously, the subject of these contracts is not the audit itself of a government agency because the COA is competo undertake such audit and cannot choose not to conduct such audit. The Constitution and existing law mandate the COA to auditgovernment agencies. Section 2, Article IX-D of the Constitution commands that the COA "shall have the x x x duty to examine, audit, asettle all accounts" of government agencies (Emphasis supplied). Similarly, the Revised Administrative Code of 1987 directs that "Commission on Audit shall have the x x x duty to examine, audit, and settle all accounts"35 of government agencies (Emphasis suppliHence, the COA cannot refuse to audit government agencies under any circumstance.

The subject of the contracts referred to in Section 32 is necessarily limited to studies, seminars, workshops, researches and other servon government auditing which the COA may or may not undertake at its discretion, thereby excluding the audit itself of governm

agencies. Since the COA personnel have the experience on government auditing and are in fact the experts on this subject, it is only profor the COA to be granted the right of first refusal to undertake such services if required by government agencies. This is what Section 3all about and nothing more. Plainly, there is nothing in Section 32 which prohibits the hiring of private auditors to audit governmagencies concurrently with the COA audit.1âwphi1.nêt

On the other hand, the DBP cites Central Bank Circular No. 112436 as legal basis for hiring a private auditor. This Circular amenSubsection 1165.5 (Book I) of the Manual of Regulations for Banks and other Financial Intermediaries to require "[E]ach bank, whetgovernment-owned or controlled or private, x x x (to) cause an annual financial audit to be conducted by an external auditor x xMoreover, the Circular states that the "audit of a government-owned or controlled bank by an external independent auditor shall baddition to and without prejudice to that conducted by the Commission on Audit in the discharge of its mandate under existing laFurthermore, the Circular provides that the "requirement for an annual audit by an external independent auditor shall extend to specialand unique government banks such as the Land Bank of the Philippines and the Development Bank of the Philippines."

The Central Bank promulgated Circular No. 1124 on December 5, 1986 pursuant to its power under the Freedom Constitution, fundamental law then in force, as well as pursuant to its general rule making authority under the General Banking Act (RA No. 337),banking law in effect at that time. Under the Freedom Constitution, the Central Bank exercised supervisory authority over the bansystem. Section 14, Article XV of the 1973 Constitution, which was re-adopted in the Freedom Constitution, provided as follows:

"SEC. 14. The Batasang Pambansa shall establish a central monetary authority which shall provide policy direction in the areas of monbanking and credit. It shall have supervisory authority over the operations of banks and exercise such regulatory authority as mayprovided by law over the operations of finance companies and other institutions performing similar functions. Until the Batasang Pambashall otherwise provide, the Central Bank of the Philippines, operating under existing laws, shall function as the central moneauthority." (Emphasis supplied)

Section 6-D of the General Banking Act (RA No. 337) vested the Monetary Board with the specific power to "require a bank to engage

services of an independent auditor to be chosen by the bank concerned from a list of certified public accountants acceptable to Monetary Board."

The 1987 Constitution created an independent central monetary authority with substantially the same powers as the Central Bank unthe 1973 Constitution and the Freedom Constitution. Section 20, Article XII of the 1987 Constitution provides that the Monetary Bo"shall have supervision over the operations of banks". The specific power of the Central Bank under the General Banking Act (RA No. 337require an independent audit of banks was re-enacted in Section 58 of the General Banking Law of 2000 (RA No. 8791).

ndubitably, the Central Bank had the express constitutional and statutory power to promulgate Circular No. 1124 on December 5, 19The power granted to the Central Bank to issue Circular No. 1124 with respect to the independent audit of banks is direct, unambiguoand beyond dispute. The Bangko Sentral ng Pilipinas, which succeeded the Central Bank, retained under the 1987 Constitution and General Banking Law of 2000 (RA No. 8791) the same constitutional and statutory power the Central Bank had under the Freed

Constitution and the General Banking Act (RA No. 337) with respect to the independent audit of banks.



Circular No. 1124 has the force and effect of law. In a long line of decisions,37 this Court has held consistently that the rules and regulatssued by the Central Bank pursuant to its supervisory and regulatory powers have the force and effect of law. The DBP, being a bank un

the constitutional and statutory supervision of the Central Bank, was under a clear legal obligation to comply with the requiremenCircular No. 1124 on the private audit of banks. Refusal by the DBP to comply with the Circular would have rendered the DBP andofficers liable to the penal provisions of the General Banking Act,38 as well as the administrative and penal sanctions under the CenBank Act.39

The DBP also relies on Section 8 of PD No. 2029 as its statutory basis for hiring a private auditor. This Section states in part as follows:

"The audit of government corporations by the Commission on Audit shall not preclude government corporations from engaging the servof private auditing firms: Provided, however, that even if the services of the latter are availed of, the audit report of the CommissionAudit shall serve as the report for purposes of compliance with audit requirements as required of government corporations unapplicable law."

Section 8 of PD No. 2029, however, also provides that the "policy of withdrawal of resident auditors shall be fully implemented x xSection 2 of the same decree also excludes from the term "government-owned or controlled corporation" two classes of corporations. first are originally private corporations the majority of the shares of stock of which are acquired by government financial institutthrough foreclosure or dacion en pago. The second are subsidiary corporations of government corporations, which subsidiaries organized exclusively to own, manage or lease physical assets acquired by government financial institutions through foreclosure or dacen pago. Claiming that PD No. 2029 operates to exempt certain government-owned corporations from the COA's jurisdiction in violatioSection 3, Article IX-D of the Constitution, the COA is questioning the constitutionality of PD No. 2029.

There is, however, no compelling need to pass upon the constitutionality of PD No. 2029 because the Constitution and existing banaws allow such hiring. The issues raised in this case can be resolved adequately without resolving the constitutionality of PD No. 2029.

Court will leave the issue of the constitutionality of PD No. 2029 to be settled in another case where its resolution is an absolnecessity.40

Third Issue: Necessity of Private Auditor and Reasonableness of the Fees

The remaining issue to be resolved is whether or not the DBP's hiring of a private auditor was necessary and the fees it paid reasonunder the circumstances. The hiring by the DBP of a private auditor was a condition imposed by the World Bank for the grant to Philippine government in early 1987 of a US$310 million Economic Recovery Loan, at a time when the government desperately neefunds to revive a badly battered economy. One of the salient objectives of the US$310 million loan was the rehabilitation of the DBP wwas then burdened with enormous bad loans. The rehabilitation of the DBP was important in the overall recovery of the national econo

On February 23, 1986, the World Bank President reported to the Bank's Executive Directors that the privately audited accounts of the Dfor 1986 and 1987 "will be a requirement for the releases of the second and third tranches, respectively, of the ERL" (Emphasis supplieMoreover, the Agreed Minutes of Negotiations on the Philippine Economic Recovery Program41 signed by the Philippine government World Bank negotiating panels on January 8, 1987, required that "a copy of COA's letter x x x regarding DBP's appointment of a privexternal auditor will be sent to the (World) Bank before the distribution of the loan documents to the Bank's Board, along with a copthe scope of audit as approved by COA and satisfactory to the Bank" (Emphasis supplied).

As a creditor, the World Bank needed the private audit for its own information to monitor the progress of the DBP's rehabilitation. Thapparent from the said Agreed Minutes which provided that the "general terms of reference (for the hiring of private external audit) wdiscussed during the negotiations and form part of the World Bank's guidelines for financial information on financial institutions(Emphasis supplied).

The hiring of a private auditor being an express condition for the grant of the US$310 million Economic Recovery Loan, a major objectivwhich was the DBP's rehabilitation, the same was a necessary corporate act on the part of the DBP. The national government, represenby the Central Bank Governor, as well as the Ministers of Finance, Trade, and Economic Planning, had already committed to the hiring bgovernment banks of private auditors in addition to the COA. For the DBP to refuse to hire a private auditor would have aborted the voan and derailed the national economic recovery, resulting in grave consequences to the entire nation. The hiring of a private auditor

not only necessary based on the government's loan covenant with the World Bank, it was also necessary because it was mandatedCentral Bank Circular No. 1124 under pain of administrative and penal sanctions.

The last matter to determine is the reasonableness of the fees charged by Joaquin C. Cunanan & Co., the private auditor hired by the DThe COA describes the private auditor's fees as an "excessive, extravagant or unconscionable expenditure" of government funds. For audit of the DBP's financial statements in 1986, the private auditor billed the DBP the amount of P487,321.14.43 In 1987, the privauditor billed the DBP the amount of P529,947.00.44 In comparison, the COA billed the DBP an audit fee of P27,015,963.0045 in 1988,



P15,421,662.0046 in 1989. Even granting that the COA's scope of audit services was broader,47 still it could not be said that the privauditor's fees are excessive, extravagant or unconscionable compared to the COA's billings.

The hiring of a private auditor by the DBP being a condition of the US$310 million World Bank loan to the Philippine government, the of such private auditor are in reality part of the government's cost of borrowing from the World Bank. The audit report of the privauditor is primarily intended for the World Bank's information48 on the financial status of the DBP whose rehabilitation was one of objectives of the loan. An annual private audit fee of about half a million pesos added to the interest on a US$310 million loan would hamake the cost of borrowing excessive, extravagant or unconscionable. Besides, the condition imposed by a lender, whose money is at rrequiring the borrower or its majority-owned subsidiaries to submit to audit by an independent public accountant, is a reasonable normal business practice. 1âwphi1.nêt

WHEREFORE, the petition is hereby GRANTED. The letter-decision of the Chairman of the Commission on Audit dated August 29, 1988, the letter-decision promulgated by the Commission on Audit en banc dated May 20, 1989, are hereby SET ASIDE, and the temporrestraining order issued by the court enjoining respondent Commission on Audit from enforcing the said decisions is hereby mPERMANENT.

SO ORDERED.

2nd LT. SALVADOR PARREÑO represented by his daughter Myrna P. Caintic,Petitioner,

G.R. No. 162224

Present:

PUNO,* C.J.,QUISUMBING,**

YNARES-SANTIAGO,SANDOVAL-GUTIERREZ,

CARPIO,AUSTRIA-MARTINEZ,CORONA,

- versus - CARPIO MORALES,AZCUNA,TINGA,CHICO-NAZARIO,GARCIA,

VELASCO, JR., andNACHURA, JJ.

COMMISSION ON AUDIT and Promulgated:CHIEF OF STAFF, ARMEDFORCES OF THE PHILIPPINES,

Respondents. June 7, 2007x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

CARPIO, J.:

The Case

Before the Court is a petition for certiorari[1] assailing the 9 January 2003 Decision[2] and 13 January 2004 Resolution[3] of Commission on Audit (COA).

The Antecedent Facts

Salvador Parreño (petitioner) served in the Armed Forces of the Philippines (AFP) for 32 years. On 5 January 1982, petitioner retfrom the Philippine Constabulary with the rank of 2nd Lieutenant. Petitioner availed, and received payment, of a lump sum penequivalent to three years pay. In 1985, petitioner started receiving his monthly pension amounting to P13,680.



Petitioner migrated to Hawaii and became a naturalized American citizen. In January 2001, the AFP stopped petitioner’s mon

pension in accordance with Section 27 of Presidential Decree No. 1638[4] (PD 1638), as amended by Presidential Decree No. 1650Section 27 of PD 1638, as amended, provides that a retiree who loses his Filipino citizenship shall be removed from the retired list andretirement benefits terminated upon loss of Filipino citizenship. Petitioner requested for reconsideration but the Judge Advocate Genof the AFP denied the request.

Petitioner filed a claim before the COA for the continuance of his monthly pension.

The Ruling of the Commission on Audit

In its 9 January 2003 Decision, the COA denied petitioner’s claim for lack of jurisdiction. The COA ruled: It becomes immediately noticeable that the resolution of the issue at hand hinges upon the validity of Section 27 of P.D. No. 1638amended. Pursuant to the mandate of the Constitution, whenever a dispute involves the validity of laws, “the courts, as guardians ofConstitution, have the inherent authority to determine whether a statute enacted by the legislature transcends the limit imposed byfundamental law. Where the statute violates the Constitution, it is not only the right but the duty of the judiciary to declare such acunconstitutional and void.” (Tatad vs. Secretary of Department of Energy, 281 SCRA 330) That being so, prudence dictates that Commission defer to the authority and jurisdiction of the judiciary to rule in the first instance upon the constitutionality of the provisioquestion.

Premises considered, the request is denied for lack of jurisdiction to adjudicate the same. Claimant is advised to file his claim wthe proper court of original jurisdiction.[6]

Petitioner filed a motion for reconsideration. Petitioner alleged that the COA has the power and authority to incidentally rule onconstitutionality of Section 27 of PD 1638, as amended. Petitioner alleged that a direct recourse to the court would be dismissed for faito exhaust administrative remedies. Petitioner further alleged that since his monthly pension involves government funds, the reasonthe termination of the pension is subject to COA’s authority and jurisdiction.

In its 13 January 2004 Resolution, the COA denied the motion. The COA ruled that the doctrine of exhaustion of administraremedies does not apply if the administrative body has, in the first place, no jurisdiction over the case. The COA further ruled that evenassumed jurisdiction over the claim, petitioner’s entitlement to the retirement benefits he was previously receiving must nec essarily ceupon the loss of his Filipino citizenship in accordance with Section 27 of PD 1638, as amended.

Hence, the petition before this Court.

The Issues

Petitioner raises the following issues:

1. Whether Section 27 of PD 1638, as amended, is constitutional;

2. Whether the COA has jurisdiction to rule on the constitutionality of Section 27 of PD 1638, as amended; and

3. Whether PD 1638, as amended, has retroactive or prospective effect.[7]

The Ruling of this Court

The petition has no merit.

Jurisdiction of the COA

Petitioner filed his money claim before the COA. A money claim is “a demand for payment of a sum of money, reimbursemen

compensation arising from law or contract due from or owing to a government agency.”*8+ Under Commonwealth Act No. 327,*9

amended by Presidential Decree No. 1445,[10] money claims against the government shall be filed before the COA.[11]

Section 2(1), Article IX(D) of the 1987 Constitution prescribes the powers of the COA, as follows:



Sec. 2. (1) The Commission on Audit shall have the power, authority, and duty to examine, audit, and settle all accounts pertaininthe revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Governmor any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters,on a post-audit basis; (a) constitutional bodies, commissions and offices that have been granted fiscal autonomy under this Constitut(b) autonomous state colleges and universities; (c) other government-owned or controlled corporations and their subsidiaries; and (d) snon-governmental entities receiving subsidy or equity, directly or indirectly, from or through the Government, which are required by lawthe granting institution to submit such audit as a condition of subsidy or equity. However, where the internal control system of the audagencies is inadequate, the Commission may adopt such measures, including temporary or special pre-audit, as are necessary appropriate to correct the deficiencies. It shall keep the general accounts of the Government and, for such period as may be provideaw, preserve the vouchers and other supporting papers pertaining thereto.

The jurisdiction of the COA over money claims against the government does not include the power to rule on the constitutionalitvalidity of laws. The 1987 Constitution vests the power of judicial review or the power to declare unconstitutional a law, trenternational or executive agreement, presidential decree, order, instruction, ordinance, or regulation in this Court and in all Regional T

Courts.*12+ Petitioner’s money claim essentially involved the constitutionality of Section 27 of PD 1638, as amended. Hence, the COAnot commit grave abuse of discretion in dismissing petitioner’s money claim.

Petitioner submits that the COA has the authority to order the restoration of his pension even without ruling on the constitutionof Section 27 of PD 1638, as amended. The COA actually ruled on the matter in its 13 January 2004 Resolution, thus:

Furthermore, assuming arguendo that this Commission assumed jurisdiction over the instant case, claimant’s entitlement to the retirem

benefits he was previously receiving must necessarily be severed or stopped upon the loss of his Filipino citizenship as prescribed in Sec

27, P.D. No. 1638, as amended by P.D. No. 1650.[13]

The COA effectively denied petitioner’s claim because of the loss of his Filipino citizenship.

Application of PD 1638, as amended

Petitioner alleges that PD 1638, as amended, should apply prospectively. The Office of the Solicitor General (OSG) agrees wpetitioner. The OSG argues that PD 1638, as amended, should apply only to those who joined the military service after its effectivity, cSections 33 and 35, thus:

Section 33. Nothing in this Decree shall be construed in any manner to reduce whatever retirement and separation pay or gratuit

other monetary benefits which any person is heretofore receiving or is entitled to receive under the provisions of existing law.

x x x x

Section. 35. Except those necessary to give effect to the provisions of this Decree and to preserve the rights granted to retireseparated military personnel, all laws, rules and regulations inconsistent with the provisions of this Decree are hereby repealed or modaccordingly.

The OSG further argues that retirement laws are liberally construed in favor of the retirees. Article 4 of the Civil Code pr ovides: “Laws s

have no retroactive effect, unless the contrary is provided.” Section 36 of PD 1638, as amended, provides that it shall take effect uponapproval. It was signed on 10 September 1979. PD 1638, as amended, does not provide for its retroactive application. There isquestion that PD 1638, as amended, applies prospectively.

However, we do not agree with the interpretation of petitioner and the OSG that PD 1638, as amended, should apply only to thwho joined the military after its effectivity. Since PD 1638, as amended, is about the new system of retirement and separation from serof military personnel, it should apply to those who were in the service at the time of its approval. In fact, Section 2 of PD 1638amended, provides that “th*e+ Decree shall apply to all military personnel in the service of the Armed Forces of the Philippines.” PD 1

as amended, was signed on 10 September 1979. Petitioner retired in 1982, long after the approval of PD 1638, as amended. Hence,provisions of PD 1638, as amended, apply to petitioner.

Petitioner Has No Vested Right to hisRetirement Benefits

Petitioner alleges that Section 27 of PD 1638, as amended, deprives him of his property which the Constitution and statutes ves

him. Petitioner alleges that his pension, being a property vested by the Constitution, cannot be removed or taken from him just becaus



became a naturalized American citizen. Petitioner further alleges that the termination of his monthly pension is a penalty equivalendeprivation of his life.

The allegations have no merit. PD 1638, as amended, does not impair any vested right or interest of petitioner. Where the emploretires and meets the eligibility requirements, he acquires a vested right to the benefits that is protected by the due process clause.[14the time of the approval of PD 1638 and at the time of its amendment, petitioner was still in active service. Hence, petitioner’s retirem

benefits were only future benefits and did not constitute a vested right. Before a right to retirement benefits or pension vests inemployee, he must have met the stated conditions of eligibility with respect to the nature of employment, age, and length of service.[15s only upon retirement that military personnel acquire a vested right to retirement benefits. Retirees enjoy a protected property inte

whenever they acquire a right to immediate payment under pre-existing law.[16]

Further, the retirement benefits of military personnel are purely gratuitous in nature. They are not similar to pension plans whemployee participation is mandatory, hence, the employees have contractual or vested rights in the pension which forms part of compensation.[17]

Constitutionality of Section 27 of PD 1638

Section 27 of PD 1638, as amended, provides:

Section 27. Military personnel retired under Sections 4, 5, 10, 11 and 12 shall be carried in the retired list of the Armed Forces ofPhilippines. The name of a retiree who loses his Filipino citizenship shall be removed from the retired list and his retirement benterminated upon such loss.

The OSG agrees with petitioner that Section 27 of PD 1638, as amended, is unconstitutional. The OSG argues that the obligamposed on petitioner to retain his Filipino citizenship as a condition for him to remain in the AFP retired list and receive his retirem

benefit is contrary to public policy and welfare, oppressive, discriminatory, and violative of the due process clause of the Constitution. OSG argues that the retirement law is in the nature of a contract between the government and its employees. The OSG further argues Section 27 of PD 1638, as amended, discriminates against AFP retirees who have changed their nationality.

We do not agree.

The constitutional right to equal protection of the laws is not absolute but is subject to reasonable classification.[18] To be reasonathe classification (a) must be based on substantial distinctions which make real differences; (b) must be germane to the purpose of the (c) must not be limited to existing conditions only; and (d) must apply equally to each member of the class.[19]

There is compliance with all these conditions. There is a substantial difference between retirees who are citizens of the Philippand retirees who lost their Filipino citizenship by naturalization in another country, such as petitioner in the case before us. constitutional right of the state to require all citizens to render personal and military service[20] necessarily includes not only privcitizens but also citizens who have retired from military service. A retiree who had lost his Filipino citizenship already renouncedallegiance to the state. Thus, he may no longer be compelled by the state to render compulsory military service when the need arPetitioner’s loss of Filipino citizenship constitutes a substantial distinction that distinguishes him from other retirees who retain tFilipino citizenship. If the groupings are characterized by substantial distinctions that make real differences, one class may be treated regulated differently from another.[21]

Republic Act No. 7077[22] (RA 7077) affirmed the constitutional right of the state to a Citizen Armed Forces. Section 11 of RA 7provides that citizen soldiers or reservists include ex-servicemen and retired officers of the AFP. Hence, even when a retiree is no longethe active service, he is still a part of the Citizen Armed Forces. Thus, we do not find the requirement imposed by Section 27 of PD 1638

amended, oppressive, discriminatory, or contrary to public policy. The state has the right to impose a reasonable condition thanecessary for national defense. To rule otherwise would be detrimental to the interest of the state.

There was no denial of due process in this case. When petitioner lost his Filipino citizenship, the AFP had no choice but to stopmonthly pension in accordance with Section 27 of PD 1638, as amended. Petitioner had the opportunity to contest the termination opension when he requested for reconsideration of the removal of his name from the list of retirees and the termination of his pension. Judge Advocate General denied the request pursuant to Section 27 of PD 1638, as amended.

Petitioner argues that he can reacquire his Filipino citizenship under Republic Act No. 9225[23] (RA 9225), in which case he will sticonsidered a natural-born Filipino. However, petitioner alleges that if he reacquires his Filipino citizenship under RA 9225, he will stillbe entitled to his pension because of its prior termination. This situation is speculative. In the first place, petitioner has not shown thahas any intention of reacquiring, or has done anything to reacquire, his Filipino citizenship. Secondly, in response to the request for opin



of then AFP Chief of Staff, General Efren L. Abu, the Department of Justice (DOJ) issued DOJ Opinion No. 12, series of 2005, datedJanuary 2005, thus:

[T]he AFP uniformed personnel retirees, having re-acquired Philippine citizenship pursuant to R.A. No. 9225 and its IRR, are entitledpension and gratuity benefits reckoned from the date they have taken their oath of allegiance to the Republic of the Philippines. It gwithout saying that these retirees have no right to receive such pension benefits during the time that they have ceased to be Filipipursuant to the aforequoted P.D. No. 1638, as amended, and any payment made to them should be returned to the AFP. x x x.[24]

Hence, petitioner has other recourse if he desires to continue receiving his monthly pension. Just recently, in AASJS Member-He

Gumangan Calilung v. Simeon Datumanong,[25] this Court upheld the constitutionality of RA 9225. If petitioner reacquires his Filicitizenship, he will even recover his natural-born citizenship.*26+ In Tabasa v. Court of Appeals,*27+ this Court reiterated that “*

repatriation of the former Filipino will allow him to recover his natural-born citizenship x x x.”

Petitioner will be entitled to receive his monthly pension should he reacquire his Filipino citizenship since he will again be entitlethe benefits and privileges of Filipino citizenship reckoned from the time of his reacquisition of Filipino citizenship. There is no legal obstto the resumption of his retirement benefits from the time he complies again with the condition of the law, that is, he can receiveretirement benefits provided he is a Filipino citizen.

We acknowledge the service rendered to the country by petitioner and those similarly situated. However, petitioner failedovercome the presumption of constitutionality of Section 27 of PD 1638, as amended. Unless the provision is amended or repealed infuture, the AFP has to apply Section 27 of PD 1638, as amended.

WHEREFORE, we DISMISS the petition. We AFFIRM the 9 January 2003 Decision and 13 January 2004 Resolution of Commission on Audit.

SO ORDERED.

G.R. No. L-3659 April 30, 1954

PHILIPPINE OPERATIONS, INC., petitioner,vs.AUDITOR GENERAL OF THE PHILIPPINES and the BUREAU OF PERSONS, respondents.

Rafael Dinglasan and Claro M. Recto for petitioner.

Office of the Solicitor General Felix Bautista Angelo and Solicitor Ramon L. Avanceña for respondents.

LABRADOR, J.:

This is an appeal from a decision of the Auditor General denying a claim of the Philippine Operations, Inc., against the governmamounting to P105,000.00. The circumstances leading to this appeal are briefly as follows:

On October 3, 1947, the petitioner herein, Philippine Operations, Inc., entered into a barter agreement with the Bureau of Pr isons whet agreed to deliver to the Bureau a sawmill, complete, with a diesel fuel engine, a stop saw edge and log turner, etc., and two LCMs in g

turning condition, in exchange for 350,000 board feet of sawed lumber (Annex A). The principal conditions of the barter agreement arfollows:

1. That Party of the Second Part shall deliver to the party of the First Part, the Sawmill above described, complete, with accessories alre

created, in Mindoro where it is at present located, after the same shall have inspected and found satisfactory;

2. That the Party of the Second Part shall deliver to the Party of the First Part, the two (2) LCMs, in good running condition, in Manila at Pasig River, after the same shall have been inspected and found satisfactory;

3. That the Party of the First Part shall deliver to the Party of the Second Part, SEVENTY THOUSAND (70,000) bd. ft. of sawed lum(Apitong, Malugay or Amugis) thirty days after installation of the sawmill, and SEVENTY THOUSAND (70,000) bd. ft. of said lumber evmonth thereafter, until the Party of the First Part shall have delivered to the Party of the Second Part THREE HUNDRED FIFTY THOUSA(350,000) bd. ft. of lumber.

The receipt that an employee of the Bureau of Prisons issued for the sawmill and its accessories discloses the following unsatisfactconditions: there was no belting for the main saw; there was one carriage frame broken; one head block was without hook and doe; th

was no steel rope cable for carriage drive; and all other important parts of the machine were worn out and rusty and needing overhau



The cable and the belting, however, were furnished the Bureau of Prisons on February 4, 1948 (Annex C). As to the landing barges, one received without any statement as to its condition, while the other, upon inspection, was found acceptable, although various spare pawere missing (Annex E). The person who received the landing barge recommended that the spare parts needed to put it in runncondition be deducted from the contract price.

Claim is made by the Bureau of Prisons that when the barges were examined at the Davao Penal Colony, the petitioner andrepresentative were advised verbally about the defects therein, and so were they with respect to the parts of the sawmill when it found. Upon delivery to the Iwahig Penal Colony, that it was not in good running condition and that some parts were missing; and petitioner's manager agreed to reimburse the Bureau of Prisons for whatever expenses the latter may incur in putting the equipmengood running condition. (2nd Indorsement of the Director of Prisons dated November 26, 1948.) At the time the above indorsement

written, the repairs on the barges and the sawmill had not yet been completed.

When around a year later, it became evident that it was not feasible for the Bureau of Prisons to deliver the lumber, obviously due to delay in the installation, the petitioner herein proposed to obtain surplus properties from the Surplus Property Commission in lieu ofumber so as to finally liquidate the obligation contracted by the Bureau of Prison. It turned out, however, that no equipment could

found in the various Surplus Property Commission depots which could be of service to the petitioner herein, so it proposed that corporation be credited with the amount of P70,000 and be allowed to bid and negotiate in future surplus offerings up to that amou(Annex B to letter of Counsel for petitioner to Auditor General dated June 20, 1949.) Again, on November 2, 1948, petitioner offereacquire certain surplus properties located in Manicani Island, Samar, for P100,000, with the suggestion that this price be paid for witcredit of P70,000, plus an additional amount of P30,000 with which to complete the full price above mentioned. (Annex C, Ibid.) Asdefinite arrangement could be arrived at, the Bureau of Prisons in the second indorsement of November 26, 1948, already alludeddeclared that the Bureau had made preparations to deliver the lumber from Davao Penal Colony, and that it had a sufficient quantity of stored to make initial delivery. Evidently, no action was taken by the petitioner on this advice of the Director of Prisons.

On June 20, 1949, the attorney for the petitioner filed a claim with the Auditor General. On August 26, 1949, the Director of Prisons offeto deliver the first installment of sawed lumber after 30 days. This offer was rejected by the petitioner on the ground that the offedeliver the lumber came too late, and it demanded that cash payment of P70,000 be paid to it, plus P35,000 for damages suffered.

Upon the presentation of the claim with the Auditor General, the latter sought of the opinion of the Secretary of Justice, and this officiaJanuary 3, 1950, held that inasmuch as the contract entered into was one of barter, pure and simple, and not one of purchase and sale, as no money consideration ever entered the minds of the parties at the time of the agreement, the demand of the petitioner for P70,should be denied, and that instead in view of the willingness of the Bureau of Prisons to perform its part of the obligation, the contractcarried out by the immediate delivery of the P350,000 board feet of lumber stipulated in the agreement. (See 6th Indorsement of Department of Justice dated January 3, 1950.) On the basis of this opinion, the Auditor General denied the petitioner's claim, and the lathereafter appealed to this Court.

t is to be noted at the outset that the original contract of barter did not state what the value was of the barges and sawmill to be deliveor that of the 350,000 board feet of sawn lumber to be given in exchange. As early as October 8, 1948, when attempts were made to sethe obligation of the Bureau of Prisons in terms of surplus materials, petitioner herein had claimed that the value of the barges and sawdelivered was P70,000. (See letters of October 8, 1948, and November 2, 1948, the Director of Prisons had averred that he entered inbarter agreement fixing P35,000 as the value of the equipment, equivalent to the P350,000 board feet which it promised to deliveexchange, at P0.10 a board foot. There is question, therefore, whether the equipment could be valued at P70,000 or not.

The respondent claims that the condition in which the barge and the machinery were found at the time of delivery was unsatisfactory. TDirector of Prisons stated in his indorsement that notice of these defects was given the petitioner through one Mr. Rowe and Mr. Enriqand this fact is not, nor does not appear to be, denied. The receipt issued upon the delivery of the sawmill shows that there were mparts missing, and states that the specification that most of the parts and engines needed complete overhauling was a notice topetitioner that the sawmill was not found satisfactory upon inspection. But the claim of petitioner, as presented to the Auditor Gene

alleges that the machinery were found satisfactory and in good running condition, on the ground that the Bureau of Prisons had accepthe delivery thereof. There is therefore, also an issue as to the condition of the equipment bartered.

Again, it is the contention of the government, as indicated in the opinion of the Secretary of Justice, that inasmuch as the first deliverumber was to take effect upon the installation of the sawmill, said installation was an essential element of the contract, and consequets obligation to deliver the lumber did not accrue upon the delivery of the barges and machinery, and the accessories thereof by

Bureau of Prisons, but from the moment that the installation was finished. Lastly, the amount of petitioner's claim for damagesdamages does not appears to have been admitted by the Bureau of Prisons or by any official of the Government, so that outsidpetitioner's right thereto, its amount, assessed at P35,000, can not be considered as a fact admitted by the adverse party.

The above considerations regarding the existence of issues with regard to petitioner' claim for P105,000 are set forth in view of the defeset up by the Bureau of Prisons that the Auditor General has no jurisdiction over petitioner's claim, and that the same is not author

under Commonwealth Act No. 327. However, it now appears that in April, 1950, pending determination of petitioner' claim, the 350,



board feet of lumber agreed to be delivered by the Bureau of Prisons were, by agreement of both parties, to be sold and the procedelivered to petitioner. The latter has actually received the sum of P45,500. So the claims of petitioner at the time of the submission of case to the Court for decision are, (1) the amount of P24,500 representing the difference between the alleged market value of the lumof P70,000 and the amount of P45,500 received, and (2) the amount of P35,000 representing the damages allegedly suffered by petitioner due to the delay in the delivery of the lumber.

The respondents contend that Commonwealth Act No. 327, which imposes upon the Auditor General the duty of acting upon and deci"all cases involving the settlement of accounts or claims other than those of accountable officers," does not authorize or empower Auditor General to pass upon the petitioner's claim for P105,000, because the term "claims", used in the said Act can refer to no other tiquidated claims, as held in the case of Compañia General de Tabacos vs. French and Unson, 39 Phil. 34. In reply the petitioner argues t

under Commonwealth Act No. 3038, Sections 1 and 2, the Auditor General has been granted the additional power upon "any moneclaim involving arising from contract express or implied, which could serve as basis for civil action between private parties," and that egranting that the Auditor General has jurisdiction only over liquidated claims, the claim has for P70,000 is a liquidated claim because it been accepted by the parties as such.

Before the advent of the Commonwealth Government, the jurisdiction of the Auditor General to pass upon and decide claims of privpersons against the Government was contained in sections 24 and 25 of the Jones Law promulgated August 29, 1916. The pertinprovisions of the said law are as follows:

SEC. 24. . . . The Auditor shall, except as hereinafter provided, have the like authority as that conferred by law upon the several auditorthe United States Treasury and is authorized to communicate directly with any person having claims before him for settlement, or with department, officer, or person having official relations with his office.

SEC. 25. That any person aggrieved by the action or decision of the Auditor in the settlement of his account or claim may, within one yetake an appeal in writing to the Governor-General, which appeal shall specifically set forth the particular action of the Auditor to wexception is taken, with the reason and authorization relied on for reversing such decision.

The powers of treasury officials of the United States over the settlement of accounts has always been clearly distinguished from tpower over claims. It has been generally held that an account is something which may be adjusted and liquidated by an arithmetcomputation (Power vs. U.S., 18 Court of Claims 263; 31 USCA 23), and that claims for unliquidated damages can not be consideredaccounts and are not committed by law to their control and decision. (Ibid.; McClure vs. U.S., 19 Court of Claims 173, 179; Denis vs. U.S.Court of Claims, 119, 121; U.S. vs. Mckee, 97 U.S. 233, 24 L. ed. 911; 31 USCA 23-24.) The reason for denying treasury officials of the UniStates jurisdiction over unliquidated damages for breach of contract is because these claims "often involve a broad field of investigatand require the application of judgment and discretion upon the measure of damages and the weight of conflicting evidence. (Ibid.)

A case is decided in this jurisdiction while the Jones Law was still in force is that of Compañia General de Tabacos vs. French and UnsonPhil. 34, 42, where we held:

Section 584 of the Administrative Code of 1917 is very similar in its terms to section 236 of the Revised Statutes of the United States whreads as follows:

All claims and demands whatever in which the United States are concerned, either as debtors or as creditor, shall be settled and adjustethe Department of the Treasury. Nevertheless, the words "all claims and demands whatever . . . against" the United States as used in statute have held been repeatedly not to authorize the officers of the Treasury Department to entertain unliquidated claims against United States for damages. In the case of Power vs. United States (18 C. Cls. R., 275), Judge Davis writing the opinion of the court said:

An account is something which may be adjusted and liquidated by an arithmetical process . . .. But no law law authorizes Treasury officto allow and pass in accounts a number not the result of numerical computation upon a subject within the operation of a mutual par

contract. Claims for unliquidated damages require for their settlement the application of the qualities of judgment and discretion. Theyfrequently, perhaps generally sustained by extraneous proof, having no relation to the subjects of the contract which are common to bparties. . . .. The results to be reached in such cases can in no just sense be called an account, and are not committed by law to the conand decision of Treasury accounting officers.

t is contended on behalf of the petitioner that Act No. 3083 authorizes the auditor to take the cognizance of unliquidated claims. We fnothing in the context from which this contention can be inferred. The term used is moneyed claims, which has a well-defined concunder the Jones law as above indicated.

There are other fundamental reasons why Act No. 3083 could not have contemplated unliquidated claims, or cases where the liabilit