Republic of the Philippines 2. ID.; ID.; ID.
; REORGANIZATION, VALID WHEN PURSUED IN GOOD
SUPREME COURT
Manila
EN BANC
G.R. No. 84301. April 7, 1993.
NATIONAL LAND TITLES AND DEEDS REGISTRATION
ADMINISTRATION, petitioner,
vs.
CIVIL SERVICE COMMISSION and VIOLETA L. GARCIA, respondents.
The Solicitor General for petitioner.
Raul R. Estrella for private respondent.
SYLLABUS
1. ADMINISTRATIVE LAW; EXECUTIVE ORDER NO. 649; REORGANIZED
LAND REGISTRATION COMMISSION TO NALTDRA; EXPRESSLY
PROVIDED THE ABOLITION OF EXISTING POSITIONS. — Executive
Order No. 649 authorized the reorganization of the Land Registration
Commission (LRC) into the National Land Titles and Deeds Registration
Administration (NALTDRA). It abolished all the positions in the now defunct
LRC and required new appointments to be issued to all employees of the
NALTDRA. The question of whether or not a law abolishes an office is one of
legislative intent about which there can be no controversy whatsoever if there
is an explicit declaration in the law itself. A closer examination of Executive
Order No. 649 which authorized the reorganization of the Land Registration
Commission (LRC) into the National Land Titles and Deeds Registration
Administration (NALTDRA), reveals that said law in express terms, provided
for the abolition of existing positions. Thus, without need of any interpretation,
the law mandates that from the moment an implementing order is issued, all
positions in the Land Registration Commission are deemed non-existent.
This, however, does not mean removal. Abolition of a position does not
involve or mean removal for the reason that removal implies that the post
subsists and that one is merely separated therefrom. (Arao vs. Luspo, 20
SCRA 722 [1967]) After abolition, there is in law no occupant. Thus, there can
be no tenure to speak of. It is in this sense that from the standpoint of strict
law, the question of any impairment of security of tenure does not arise. (De
la Llana vs. Alba, 112 SCRA 294 [1982])
FAITH; CASE AT BAR. — Nothing is better settled in our law than that the
abolition of an office within the competence of a legitimate body if done in
good faith suffers from no infirmity. Two questions therefore arise: (1) was the
abolition carried out by a legitimate body?; and (2) was it done in good faith?
There is no dispute over the authority to carry out a valid reorganization in
any branch or agency of the Government. Under Section 9, Article XVII of the
1973 Constitution. The power to reorganize is, however; not absolute. We
have held in Dario vs. Mison that reorganizations in this jurisdiction have
been regarded as valid provided they are pursued in good faith. This court
has pronounced that if the newly created office has substantially new,
different or additional functions, duties or powers, so that it may be said in
fact to create an office different from the one abolished, even though it
embraces all or some of the duties of the old office it will be considered as an
abolition of one office and the creation of a new or different one. The same is
true if one office is abolished and its duties, for reasons of economy are given
to an existing officer or office. Executive Order No. 649 was enacted to
improve the services and better systematize the operation of the Land
Registration Commission. A reorganization is carried out in good faith if it is
for the purpose of economy or to make bureaucracy more efficient. To this
end, the requirement of Bar membership to qualify for key positions in the
NALTDRA was imposed to meet the changing circumstances and new
development of the times. Private respondent Garcia who formerly held the
position of Deputy Register of Deeds II did not have such qualification. It is
thus clear that she cannot hold any key position in the NALTDRA, The
additional qualification was not intended to remove her from office. Rather, it
was a criterion imposed concomitant with a valid reorganization measure.
3. ID.; ID.; ID.; THERE IS NO VESTED PROPERTY RIGHT TO BE RE-
EMPLOYED IN A REORGANIZED OFFICE; CASE AT BAR. — There is no
such thing as a vested interest or an estate in an office, or even an absolute
right to hold it. Except constitutional offices which provide for special immunity
as regards salary and tenure, no one can be said to have any vested right in
an office or its salary. None of the exceptions to this rule are obtaining in this
case. To reiterate, the position which private respondent Garcia would like to
occupy anew was abolished pursuant to Executive Order No. 649, a valid
reorganization measure. There is no vested property right to be re employed
in a reorganized office. Not being a member of the Bar, the minimum
requirement to qualify under the reorganization law for permanent
appointment as Deputy Register of Deeds II, she cannot be reinstated to her
former position without violating the express mandate of the law.
DECISION
CAMPOS, JR., J p:
The sole issue for our consideration in this case is whether or not
membership in the bar, which is the qualification requirement prescribed for
appointment to the position of Deputy Register of Deeds under Section 4 of
Executive Order No. 649 (Reorganizing the Land Registration Commission
(LRC) into the National Land Titles and Deeds Registration Administration or
NALTDRA) should be required of and/or applied only to new applicants and
not to those who were already in the service of the LRC as deputy register of
deeds at the time of the issuance and implementation of the abovesaid
Executive Order.
The facts, as succinctly stated in the Resolution ** of the Civil Service
Commission, are as follows:
"The records show that in 1977, petitioner Garcia, a Bachelor of Laws
graduate and a first grade civil service eligible was appointed Deputy Register
of Deeds VII under permanent status. Said position was later reclassified to
Deputy Register of Deeds III pursuant to PD 1529, to which position,
petitioner was also appointed under permanent status up to September 1984.
She was for two years, more or less, designated as Acting Branch Register of
Deeds of Meycauayan, Bulacan. By virtue of Executive Order No. 649 (which
took effect on February 9, 1981) which authorized the restructuring of the
Land Registration Commission to National Land Titles and Deeds
Registration Administration and regionalizing the Offices of the Registers
therein, petitioner Garcia was issued an appointment as Deputy Register of
Deeds II on October 1, 1984, under temporary status, for not being a member
of the Philippine Bar. She appealed to the Secretary of Justice but her
request was denied. Petitioner Garcia moved for reconsideration but her
motion remained unacted. On October 23, 1984, petitioner Garcia was
administratively charged with Conduct Prejudicial to the Best Interest of the
Service. While said case was pending decision, her temporary appointment
as such was renewed in 1985. In a Memorandum dated October 30, 1986,
the then Minister, now Secretary, of Justice notified petitioner Garcia of the
termination of her services as Deputy Register of Deeds II on the ground that
she was "receiving bribe money". Said Memorandum of Termination which
took effect on February 9, 1987, was the subject of an appeal to the Inter-
Agency Review Committee which in turn referred the appeal to the Merit
Systems Protection Board (MSPB).
In its Order dated July 6, 1987, the MSPB dropped the appeal of petitioner
Garcia on the ground that since the termination of her services was due to the
expiration of her temporary appointment, her separation is in order. Her
motion for reconsideration was denied on similar ground." 1
However, in its Resolution 2 dated June 30, 1988, the Civil Service
Commission directed that private respondent Garcia be restored to her
position as Deputy Register of Deeds II or its equivalent in the NALTDRA. It
held that "under the vested right theory the new requirement of BAR
membership to qualify for permanent appointment as Deputy Register of
Deeds II or higher as mandated under said Executive Order, would not apply
to her (private respondent Garcia) but only to the filling up of vacant lawyer
positions on or after February 9, 1981, the date said Executive Order took
effect." 3 A fortiori, since private respondent Garcia had been holding the
position of Deputy Register of Deeds II from 1977 to September 1984, she
should not be affected by the operation on February 1, 1981 of Executive
Order No. 649.
Petitioner NALTDRA filed the present petition to assail the validity of the
above Resolution of the Civil Service Commission. It contends that Sections 8
and 10 of Executive Order No. 649 abolished all existing positions in the LRC
and transferred their functions to the appropriate new offices created by said
Executive Order, which newly created offices required the issuance of new
appointments to qualified office holders. Verily, Executive Order No. 649
applies to private respondent Garcia, and not being a member of the Bar, she
cannot be reinstated to her former position as Deputy Register of Deeds II.
We find merit in the petition.
Executive Order No. 649 authorized the reorganization of the Land
Registration Commission (LRC) into the National Land Titles and Deeds
Registration Administration (NALTDRA). It abolished all the positions in the
now defunct LRC and required new appointments to be issued to all
employees of the NALTDRA.
The question of whether or not a law abolishes an office is one of legislative
intent about which there can be no controversy whatsoever if there is an
explicit declaration in the law itself. 4 A closer examination of Executive Order
No. 649 which authorized the reorganization of the Land Registration
Commission (LRC) into the National Land Titles and Deeds Registration
Administration (NALTDRA), reveals that said law in express terms, provided
for the abolition of existing positions, to wit:
Sec. 8. Abolition of Existing Positions in the Land Registration Commission . .
.
All structural units in the Land Registration Commission and in the registries
of deeds, and all Positions therein shall cease to exist from the date specified
in the implementing order to be issued by the President pursuant to the
preceding paragraph. Their pertinent functions, applicable appropriations,
records, equipment and property shall be transferred to the appropriate staff
or offices therein created. (Emphasis Supplied.)
Thus, without need of any interpretation, the law mandates that from the
moment an implementing order is issued, all positions in the Land
Registration Commission are deemed non-existent. This, however, does not
mean removal. Abolition of a position does not involve or mean removal for
the reason that removal implies that the post subsists and that one is merely
separated therefrom. 5 After abolition, there is in law no occupant. Thus,
there can be no tenure to speak of. It is in this sense that from the standpoint
of strict law, the question of any impairment of security of tenure does not
arise. 6
Nothing is better settled in our law than that the abolition of an office within
the competence of a legitimate body if done in good faith suffers from no
infirmity. Two questions therefore arise: (1) was the abolition carried out by a
legitimate body?; and (2) was it done in good faith?
There is no dispute over the authority to carry out a valid reorganization in
any branch or agency of the Government. Under Section 9, Article XVII of the
1973 Constitution, the applicable law at that time:
Sec. 9. All officials and employees in the existing Government of the Republic
of the Philippines shall continue in office until otherwise provided by law or
decreed by the incumbent President of the Philippines, but all officials whose
appointments are by this Constitution vested in the Prime Minister shall
vacate their respective offices upon the appointment and qualifications of
their successors.
The power to reorganize is, however; not absolute. We have held in Dario vs.
Mison 7 that reorganizations in this jurisdiction have been regarded as valid
provided they are pursued in good faith. This court has pronounced 8 that if
the newly created office has substantially new, different or additional
functions, duties or powers, so that it may be said in fact to create an office
different from the one abolished, even though it embraces all or some of the
duties of the old office it will be considered as an abolition of one office and
the creation of a new or different one. The same is true if one office is
abolished and its duties, for reasons of economy are given to an existing
officer or office.
Executive Order No. 649 was enacted to improve the services and better
systematize the operation of the Land Registration Commission. 9 A
reorganization is carried out in good faith if it is for the purpose of economy or
to make bureaucracy more efficient. 10 To this end, the requirement of Bar
membership to qualify for key positions in the NALTDRA was imposed to
meet the changing circumstances and new development of the times. 11
Private respondent Garcia who formerly held the position of Deputy Register
of Deeds II did not have such qualification. It is thus clear that she cannot
hold any key position in the NALTDRA, The additional qualification was not
intended to remove her from office. Rather, it was a criterion imposed
concomitant with a valid reorganization measure.
A final word, on the "vested right theory" advanced by respondent Civil
Service Commission. There is no such thing as a vested interest or an estate
in an office, or even an absolute right to hold it. Except constitutional offices
which provide for special immunity as regards salary and tenure, no one can
be said to have any vested right in an office or its salary. 12 None of the
exceptions to this rule are obtaining in this case.
To reiterate, the position which private respondent Garcia would like to
occupy anew was abolished pursuant to Executive Order No. 649, a valid
reorganization measure. There is no vested property right to be re employed
in a reorganized office. Not being a member of the Bar, the minimum
requirement to qualify under the reorganization law for permanent
appointment as Deputy Register of Deeds II, she cannot be reinstated to her
former position without violating the express mandate of the law.
WHEREFORE, premises considered, We hereby GRANT the petition and
SET ASIDE the questioned Resolution of the Civil Service Commission
reinstating private respondent to her former position as Deputy Register of
Deeds II or its equivalent in the National Land Titles and Deeds Registration
Administration.
SO ORDERED.
Narvasa, C .J ., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr.,
Romero, Nocon, Bellosillo, Melo and Quiason, JJ ., concur.
Griño-Aquino, J ., is on leave.
Footnotes
** Resolution No. 88-398, Garcia, Violeta L. Re: Petition/Appeal for
Reinstatement, June 12, 1988.
1. Rollo, p. 26.
2. Resolution No. 88-398, penned by Patricia A. Sto. Tomas, Chairman,
Samilo N. Barlongay and Mario D. Yango, Commissioners; Rollo, pp. 39-42.
3. Ibid, p. 41.
4. Annot., 23 SCRA 1007 (1968).
5. Arao vs. Luspo, 20 SCRA 722 (1967); Facundo vs. Pabalan, et al., 4
SCRA 375 (1962); Castillo vs. Pajo, et al., 103 Phil. 515 (1958).
6. De La Llana vs. Alba, 112 SCRA 294 (1982).
7. G.R. No. 81954; Feria vs. Mison, G.R. No. 81967; Amasa vs. Sto. Tomas,
G.R. No. 83737; Mison vs. Civil Service Commission, G.R. No. 85310; Littaua
vs. Mison, G.R. No. 85335; Mison vs. Civil Service Commission, G.R. No.
86241, 176 SCRA 84 (1989).
8. Urgello, et. al. vs. Osmeña, Jr., et. al., 118 Phil. 1155 (1963).
9. WHEREAS clause of Executive Order No. 649.
10. Supra, note 8.
11. Sec. 4. Appointment, Qualification Rank and Salary of Officials, and
Subordinate Personnel . . .The Regional Registrars of Land Title and Deeds
and the Assistant Registrars of Land Titles and Deeds shall be members of
the Bar and shall, at the time of their appointments, have engaged in the
practice of law for at least five (5) years, or for the same period, shall have
held a position in the government requiring as a requisite therefor
membership in the Bar. (Emphasis Supplied).
12. 22 R.C.L. 285, cited in MARTIN AND MARTIN, ADMINISTRATIVE LAW,
LAW OF PUBLIC OFFICERS AND ELECTION LAW, 187 (1978).
The Lawphil Project - Arellano Law Foundation
EN BANC
[G.R. No. 138200.  February 27, 2002]
SECRETARY OF THE DEPARTMENT OF TRANSPORTATION AND
COMMUNICATIONS (DOTC), petitioner, vs. ROBERTO MABALOT,
respondent.
DECISION
BUENA, J.:
At the core of controversy in the instant Petition for Review on Certiorari is the
validity of Memorandum Order No. 96-735, dated 19 February 1996, and
Department Order No. 97-1025, dated 29 January 1997, both issued by the
Secretary of the Department of Transportation and Communications (DOTC).
The facts are uncontested.
On 19 February 1996, then DOTC Secretary Jesus B. Garcia, Jr., issued
Memorandum Order No. 96-735 addressed to Land Transportation
Franchising Regulatory Board (LTFRB) Chairman Dante Lantin, viz:
“In the interest of the service, you are hereby directed to effect the transfer of
regional functions of that office to the DOTCCAR Regional Office, pending
the creation of a regular Regional Franchising and Regulatory Office thereat,
pursuant to Section 7 of Executive Order No. 202.
“Organic personnel of DOTC-CAR shall perform the LTFRB functions on a
concurrent capacity subject to the direct supervision and control of LTFRB
Central Office.”
On 13 March 1996, herein respondent Roberto Mabalot filed a petition for
certiorari and prohibition with prayer for preliminary injunction and/or
restraining order, against petitioner and LTFRB Chairman Lantin, before the
Regional Trial Court (RTC) of Quezon City, Branch 81, praying among others
that Memorandum Order No. 96-735 be declared “illegal and without effect.”
On 20 March 1996, the lower court issued a temporary restraining order
enjoining petitioner from implementing Memorandum Order No. 96-735. On
08 April 1996, the lower court, upon filing of a bond by respondent, issued a
writ of preliminary injunction. On 25 April 1996, then DOTC Secretary Amado
Lagdameo, Jr. filed his answer to the petition.
Thereafter, on 29 January 1997, Secretary Lagdameo issued the assailed
Department Order No. 97-1025, to wit:
“Pursuant to Administrative Order No. 36, dated September 23, 1987, and for
purposes of economy and more effective coordination of the DOTC functions
in the Cordillera Administrative Region (CAR), the DOTC-CAR Regional
Office, created by virtue of Executive Order No. 220 dated July 15, 1987, is
hereby established as the Regional Office of the LTFRB and shall exercise
the regional functions of the LTFRB in the CAR subject to the direct
supervision and control of LTFRB Central Office.
“The budgetary requirement for this purpose shall come from the Department
until such time that its appropriate budget is included in the General
Appropriations Act.”
After trial, the Office of the Solicitor General (OSG) moved to reopen the
hearing in the lower court for the purpose of enabling petitioner to present
Department Order No. 97-1025. In an Order dated 18 February 1997, the
lower court granted the motion.
On 03 April 1997, respondent filed a Motion for Leave to File Supplemental
Petition assailing the validity of Department Order No. 97-1025. On 14 May
1997, the OSG presented Department Order No. 97-1025 after which
petitioner filed a formal offer of exhibits.
In an Order dated 09 June 1997, the lower court admitted petitioner’s
documentary exhibits over the objection of respondent. Likewise, the lower
court admitted the supplemental petition filed by respondent to which
petitioner filed an answer thereto.
On 31 March 1999, the lower court rendered a decision the decretal portion of
which reads:
“WHEREFORE, judgment is hereby rendered declaring Memorandum Order
Nos. 96-733 dated February 19, 1996 and 97-1025 dated January 27, 1997
of the respondent DOTC Secretary null and void and without any legal
effect as being violative of the provision of the Constitution against
encroachment on the powers of the legislative department and also of the
provision enjoining appointive officials from holding any other office or
employment in the Government.
“The preliminary injunction issued on May 13, 1996 is hereby made
permanent.
“No pronouncement as to costs.
“It is so ordered.”
Hence, the instant petition where this Court is tasked in the main to resolve
the issue of validity of the subject administrative issuances by the DOTC
Secretary.
In his Memorandum, respondent Mabalot principally argues that “a transfer of
the powers and functions of the LTFRB Regional Office to a DOTC Regional
Office or the establishment of the latter as an LTFRB Regional Office is
unconstitutional” for being “an undue exercise of legislative power.” To this
end, respondent quoted heavily the lower court’s rationale on this matter, to
wit:
“With the restoration of Congress as the legislative body, the transfer of
powers and functions, specially those quasi-judicial (in) nature, could only be
effected through legislative fiat. Not even the President of the Philippines
can do so. And much less by the DOTC Secretary who is only a mere
extension of the Presidency. Among the powers of the LTFRB are to issue
injunctions, whether prohibitory (or) mandatory, punish for contempt and to
issue subpoena and subpoena duces tecum. These powers devolve by
extension on the LTFRB regional offices in the performance of their
functions. They cannot be transferred to another agency of government
without congressional approval embodied in a duty enacted law.”
(Emphasis ours)
We do not agree. Accordingly, in the absence of any patent or latent
constitutional or statutory infirmity attending the issuance of the challenged
orders, this Court upholds Memorandum Order No. 96-735 and Department
Order No. 97-1025 as legal and valid administrative issuances by the DOTC
Secretary. Contrary to the opinion of the lower court, the President - through
his duly constituted political agent and alter ego, the DOTC Secretary in the
present case - may legally and validly decree the reorganization of the
Department, particularly the establishment of DOTC-CAR as the LTFRB
Regional Office at the Cordillera Administrative Region, with the concomitant
transfer and performance of public functions and responsibilities appurtenant
to a regional office of the LTFRB.
At this point, it is apropos to reiterate the elementary rule in administrative law
and the law on public officers that a public office may be created through any
of the following modes, to wit, either (1) by the Constitution (fundamental
law), (2) by law (statute duly enacted by Congress), or (3) by authority of
law.
Verily, Congress can delegate the power to create positions. This has been
settled by decisions of the Court upholding the validity of reorganization
statutes authorizing the President to create, abolish or merge offices in the
executive department. Thus, at various times, Congress has vested power in
the President to reorganize executive agencies and redistribute functions,
and particular transfers under such statutes have been held to be within the
authority of the President.
In the instant case, the creation and establishment of LTFRB-CAR Regional
Office was made pursuant to the third mode - by authority of law, which
could be decreed for instance, through an Executive Order (E.O.) issued by
the President or an order of an administrative agency such as the Civil
Service Commission pursuant to Section 17, Book V of E.O. 292, otherwise
known as The Administrative Code of 1987. In the case before us, the DOTC
Secretary issued the assailed Memorandum and Department Orders
pursuant to Administrative Order No. 36 of the President, dated 23
September 1987, Section 1 of which explicitly provides:
“Section 1. Establishment of Regional Offices in the CAR- The various
departments and other agencies of the National Government that are
currently authorized to maintain regional offices are hereby directed to
establish forthwith their respective regional offices In the Cordillera
Administrative Region with territorial coverage as defined under Section 2
of Executive Order No. 220 dated July 15, 1987, with regional headquarters
at Baguio City.”
Emphatically the President, through Administrative Order No. 36, did not
merely authorize but directed, in no uncertain terms, the various departments
and agencies of government to immediately undertake the creation and
establishment of their regional offices in the CAR. To us, Administrative Order
No. 36 is a clear and unequivocal directive and mandate - no less than from
the Chief Executive - ordering the heads of government departments and
bureaus to effect the establishment of their respective regional offices in the
CAR.
By the Chief Executive’s unequivocal act of issuing Administrative Order No.
36 ordering his alter ego - the DOTC Secretary in the present case - to
effectuate the creation of Regional Offices in the CAR, the President, in
effect, deemed it fit and proper under the circumstances to act and exercise
his authority, albeit through the various Department Secretaries, so as to put
into place the organizational structure and set-up in the CAR and so as not to
compromise in any significant way the performance of public functions and
delivery of basic government services in the Cordillera Administrative Region.
Simply stated, it is as if the President himself carried out the creation and
establishment of LTFRB-CAR Regional Office, when in fact, the DOTC
Secretary, as alter ego of the President, directly and merely sought to
implement the Chief Executive’s Administrative Order.
To this end, Section 17, Article VII of the Constitution mandates:
“The President shall have control of all executive departments, bureaus and
offices. He shall ensure that the laws be faithfully executed.”
By definition, control is “the power of an officer to alter or modify or nullify or
set aside what a subordinate officer had done in the performance of his duties
and to substitute the judgment of the former for that of the latter.” It includes
the authority to order the doing of an act by a subordinate or to undo
such act or to assume a power directly vested in him by law.
From the purely legal standpoint, the members of the Cabinet are subject at
all times to the disposition of the President since they are merely his alter
ego. As this Court enunciated in Villena vs. Secretary of the Interior, “without
minimizing the importance of the heads of various departments, their
personality is in reality but the projection of that of the President.” Thus, their
acts, “performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive, presumptively the
acts of the Chief Executive.”
Applying the foregoing, it is then clear that the lower court’s pronouncement -
that the transfer of powers and functions and in effect, the creation and
establishment of LTFRB-CAR Regional Office, may not be validly made by
the Chief Executive, much less by his mere alter ago and could only be
properly effected through a law enacted by Congress -is to say the least,
erroneous.
In Larin vs. Executive Secretary, this Court through the ponencia of Mr.
Justice Justo Torres, inked an extensive disquisition on the continuing
authority of the President to reorganize the National Government, which
power includes the creation, alteration or abolition of public offices. Thus in
Larin, we held that Section 62 of Republic Act 7645 (General Appropriations
Act [G.A.A.] for FY 1993) “evidently shows that the President is
authorized to effect organizational changes including the creation of
offices in the department or agency concerned”:
“Section 62. Unauthorized organizational changes.- Unless otherwise
created by law or directed by the President of the Philippines, no
organizational unit or changes in key positions in any department or agency
shall be authorized in their respective organization structures and be funded
from appropriations by this act.”
Petitioner’s contention in Larin that Sections 48 and 62 of R.A. 7645 were
riders, deserved scant consideration from the Court, Well settled is the rule
that every law has in its favor the presumption of constitutionality. Unless and
until a specific provision of the law is declared invalid and unconstitutional,
the same is valid and binding for all intents and purposes.
Worthy to note is that R.A. 8174 (G.A.A for FY 1996) contains similar
provisions as embodied in Section 72 (General Provisions) of said law
entitled “Organizational Changes” and Section 73 (General Provisions)
thereof entitled “Implementation of Reorganization.” Likewise, R.A. 8250
(G.A.A. for FY 1997) has Section 76 (General Provisions) entitled
“Organizational Changes” and Section 77 (General Provisions) entitled “
Implementation of Reorganization.”
In the same vein, Section 20, Book III of E.O. No. 292, otherwise known as
the Administrative Code of 1987, provides a strong legal basis for the Chief
Executive’s authority to reorganize the National Government, viz:
“Section 20. Residual Powers. - Unless Congress provides otherwise, the
President shall exercise such other powers and functions vested in the
President which are provided for under the laws and which are not
specifically enumerated above or which are not delegated by the President in
accordance with law.” (Emphasis ours)
This Court, in Larin, had occasion to rule that:
This provision speaks of such other powers vested in the President under the
law. What law then gives him the power to reorganize? It is Presidential
Decree No. 1772 which amended Presidential Decree No. 1416. These
decrees expressly grant the President of the Philippines the continuing
authority to reorganize the national government, which includes the
power to group, consolidate bureaus and agencies, to abolish offices, to
transfer functions, to create and classify functions, services and activities and
to standardize salaries and materials. The validity of these two decrees are
unquestionable. The 1987 Constitution clearly provides that “all laws,
decrees, executive orders, proclamations, letters of instructions and other
executive issuances not inconsistent with this Constitution shall remain
operative until amended, repealed or revoked.” So far, there is yet no law
amending or repealing said decrees.”
The pertinent provisions of Presidential Decree No. 1416, as amended by
Presidential Decree No. 1772, reads:
“1. The President of the Philippines shall have continuing authority to
reorganize the National Government.  In exercising this authority, the
President shall be guided by generally acceptable principles of good
government and responsive national development, including but not limited to
the following guidelines for a more efficient, effective, economical and
development-oriented governmental framework:
“xxx
“b) Abolish departments, offices, agencies or functions which may not be
necessary, or create those which are necessary, for the efficient conduct
of government functions, services and activities;
“c)  Transfer  functions,  appropriations,  equipment, properties, records
and personnel from one department, bureau, office, agency or
instrumentality to another;
“d) Create, classify, combine, split, and abolish positions;
“e) Standardize salaries, materials, and equipment;
“f) Create, abolish, group, consolidate, merge or integrate entities,
agencies, instrumentalities, and units of the National Government, as
well as expand, amend, change, or otherwise modify their powers,
functions, and authorities, including, with respect to government-owned
or controlled corporations, their corporate life, capitalization, and other
relevant aspects of their charters. (As added by P.D. 1772)
“g) Take such other related actions as may be necessary to carry out the
purposes and objectives of this decree. (As added by P.D. 1772) (Emphasis
supplied.)
In fine, the “designation” and subsequent establishment of DOTC-CAR as the
Regional Office of LTFRB in the Cordillera Administrative Region and the
concomitant exercise and performance of functions by the former as the
LTFRB-CAR Regional Office, fall within the scope of the continuing authority
of the President to effectively reorganize the Department of Transportation
and Communications.
Beyond this, it must be emphasized that the reorganization in the instant case
was decreed “in the interest of the service” and “for purposes of economy
and more effective coordination of the DOTC functions in the Cordillera
Administrative Region.” In this jurisdiction, reorganization is regarded as valid
provided it is pursued in good faith. As a general rule, a reorganization is
carried out in good faith if it is for the purpose of economy or to make
bureaucracy more efficient. To our mind, the reorganization pursued in the
case at bar bears the earmark of good faith. As petitioner points out, “tapping
the DOTC-CAR pending the eventual creation of the LTFRB Regional Office
is economical in terms of manpower and resource requirements, thus,
reducing expenses from the limited resources of the government.”
Furthermore, under Section 18, Chapter 5, Title XV, Book IV of E.O. 292 and
Section 4 of E.O. 202, the Secretary of Transportation and Communications,
through his duly designated Undersecretary, shall exercise administrative
supervision and control over the Land Transportation Franchising and
Regulatory Board (Board).
Worthy of mention too is that by express provision of Department Order No.
97-1025, the LTFRB-CAR Regional Office is subject to the direct supervision
and control of LTFRB Central Office. Under the law, the decisions, orders or
resolutions of the Regional Franchising and Regulatory Offices shall be
appealable to the Board within thirty (30) days from receipt of the decision;
the decision, order or resolution of the Board shall be appealable to the
DOTC Secretary. With this appellate set-up and mode of appeal clearly
established and in place, no conflict or absurd circumstance would arise in
such manner that a decision of the LTFRB-CAR Regional Office is subject to
review by the DOTC-CAR Regional Office.
As to the issue regarding Sections 7 and 8, Article IX-B of the Constitution,
we hold that the assailed Orders of the DOTC Secretary do not violate the
aforementioned constitutional provisions considering that in the case of
Memorandum Order No. 96-735, the organic personnel of the DOTC-CAR
were, in effect, merely designated to perform the additional duties and
functions of an LTFRB Regional Office subject to the direct supervision and
control of LTFRB Central Office, pending the creation of a regular LTFRB
Regional Office.
As held in Triste vs. Leyte State College Board of Trustees:
“To designate a public officer to another position may mean to vest him with
additional duties while he performs the functions of his permanent office. Or
in some cases, a public officer may be designated to a position in an acting
capacity as when an undersecretary is designated to discharge the functions
of a Secretary pending the appointment of a permanent Secretary.”
Assuming arguendo that the appointive officials and employees of DOTC-
CAR shall be holding more than one office or employment at the same time
as a result of the establishment of such agency as the LTFRB-CAR pursuant
to Department Order No. 97-1025, this Court is of the firm view that such fact
still does not constitute a breach or violation of Section 7, Article IX-B of the
Constitution. On this matter, it must be stressed that under the
aforementioned constitutional provision, an office or employment held in the
exercise of the primary functions of one’s principal office is an exception to, or
not within the contemplation, of the prohibition embodied in Section 7, Article
IX-B.
Equally significant is that no evidence was adduced and presented to clearly
establish that the appointive officials and employees of DOTC-CAR shall
receive any additional, double or indirect compensation, in violation of Section
8, Article IX-B of the Constitution. In the absence of any clear and convincing
evidence to show any breach or violation of said constitutional prohibitions,
this Court finds no cogent reason to declare the invalidity of the challenged
orders.
WHEREFORE, in view of the foregoing, the instant petition is hereby
GRANTED. ACCORDINGLY, the decision dated 31 March 1999 of the
Regional Trial Court of Quezon City-Branch 81 in Special Civil Action Case
No. Q-96-26868 is REVERSED and SET ASIDE.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Kapunan, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio,
JJ., concur.
Vitug, J., in the result.
Docketed as Special Civil Action Case No. Q-96-26868 and entitled “Roberto
R. Mabalot versus Hon. Dante M. Lantin and Hon. Jesus B. Garcia, Jr. and/or
Hon. Amado Lagdameo.”
Then presided by Judge Wenceslao I. Agnir, Jr., now Court of Appeals
Justice.
Should be Memorandum Order No. 96-735.
Rollo, pp. 112-123.
Cruz, Carlo L., “The Law of Public Officers, 1997 Ed., p.4”, cited in Buklod ng
Kawaning EIIB, et. al vs. Hon. Executive Secretary, et. al, G.R. No. 142801-
802, July 10, 2001.
De Leon and De Leon, Jr., “Administrative Law: Text and Cases, Fourth Ed.,
2001, p. 22.”, citing Viola vs. Alunan III, 277 SCRA 409(1997) and Larin vs.
Executive Secretary, 280 SCRA 713 (1997).
Ibid., pp.21-22.
As held in Rubenecia vs. Civil Service Commission, 244 SCRA 640 [1995].
Provides for “the Establishment of Regional Offices in the Cordillera
Administrative Region.”
Mondano vs. Silvosa, 97 Phil. 143 [1955].
Cruz, Isagani, “Philippine Political Law, 1998 Ed., p.212.”
Ibid., p. 213.
67 Phil. 451 [1939]. ENGINEER CLARO J. PRECLARO, petitioner,
vs.
280 SCRA 713 [1997]. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

Larin vs. Executive Secretary, 280 SCRA 713 [1997].  

Section 3, Article XVIII of the Constitution. KAPUNAN, J.:

Pursuant to DOTC Memorandum Order No. 96-735.
Pursuant to DOTC Department Order No. 97-1025.
Memorandum Order No. 96-735, dated 19 February 1996.
Department Order No. 97-1025, dated 29 January 1997.
Dario vs. Mison, 176 SCRA 84 [1989].
Rollo, pp. 18-19.
The Administrative Code of 1987.
Executive Order No. 202, dated 19 June 1987, creating the Land
Transportation Franchising and Regulatory Board in the Department of
Transportation and Communications.
Supervision and Control is defined in Section 38 par. (1), Chapter 7
(Administrative Relationships), Book IV of E.O. 292.
Sections 20 and 22,Chapter 5, Title XV, Book IV of E.O. 292; Sections 6 and
8, E.O. 202.
192 SCRA 326 [1990].
Republic of the Philippines
SUPREME COURT
Manila
On 14 June 1990, petitioner was charged before the Sandiganbayan with a
violation of Sec. 3(b) of R.A. No. 3019 as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act. The information against him read as
follows:
That on or about June 8, 1990, or sometime prior thereto, in Quezon
City, Philippines, and within the jurisdiction of this Honorable Court,
the above-named accused, a public officer, being then the Project
Manager/ Consultant of the Chemical Mineral Division, Industrial
Technology Development Institute, Department of Science and
Technology, a component of the Industrial Development Institute
(ITDI for brevity) which is an agency of the Department of Science
and Technology (DOST for brevity), wherein the Jaime Sta. Maria
Construction undertook the construction of the building in Bicutan,
Taguig, Metro Manila, with a total cost of SEVENTEEN MILLION SIX
HUNDRED NINETY FIVE THOUSAND PESOS (P17,695,000.00)
jointly funded by the Philippine and Japanese Governments, and
while the said construction has not yet been finally completed,
accused either directly requested and/or demanded for himself or for
another, the sum of TWO HUNDRED THOUSAND PESOS
(P200,000.00), claimed as part of the expected profit of FOUR
HUNDRED SIXTY THOUSAND PESOS (P460,000.00) in connection
with the construction of that government building wherein the
accused had to intervene under the law in his capacity as Project
Manager/Consultant of said construction — said offense having been
committed in relation to the performance of his official duties.
CONTRARY TO LAW. 1
On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the
charges against him.

FIRST DIVISION On 30 June 1993, after trial on the merits, the Second Division of the
Sandiganbayan rendered judgment finding petitioner guilty beyond
  reasonable doubt. The dispositive portion reads as follows:

G.R. No. 111091 August 21, 1995

 WHEREFORE, judgment is hereby rendered finding accused Claro
Preclaro y Jambalos GUILTY beyond reasonable doubt of the
violation of Section 3, paragraph (b) of Republic Act No. 3019, as
amended, otherwise known as the Anti-Graft and Corrupt Practices
Act, and he is hereby sentenced to suffer an indeterminate penalty
ranging from SIX (6) YEARS and ONE (1) MONTH, as the minimum,
to TEN (10) YEARS and ONE (1) DAY, as the maximum, perpetual
disqualification from public office and to pay the costs of this action.
SO ORDERED. 2
The antecedent facts are largely undisputed.
On 1 October 1989, the Chemical Mineral Division of the Industrial
Technology Development Institute (ITDI), a component of the Department of
Science and Technology (DOST) employed Petitioner under a written
contract of services as Project Manager to supervise the construction of the
ITDI-CMD (JICA) Building at the DOST Compound in Bicutan, Taguig, Metro
Manila. 3
The contract was to remain in effect from October 1, 1989 up to the end of
the construction period unless sooner terminated. 4 Petitioner was to be paid
a monthly salary drawn from counter-part funds duly financed by foreign-
assisted projects and government funds duly released by the Department of
Budget and Management. 5
In November 1989, to build the aforementioned CMD Structure, DOST
contracted the services of the Jaime Sta. Maria Construction Company with
Engr. Alexander Resoso, as the company's project engineer. 6
How petitioner committed a violation of the Anti-Graft & Corrupt Practices Act
is narrated in the Comment of the Solicitor General and amply supported by
the records. The material portions are hereunder reproduced:
xxx xxx xxx
3. In the month of May, 1990, Alexander Resoso, Project Engineer of
the Sta. Maria Construction Company, was in the process of
evaluating a Change Order for some electricals in the building
construction when petitioner approached him at the project site (p.
11, 25, Ibid.).
4. Unexpectedly, petitioner made some overtures that expenses in
the Change Order will be deductive (meaning, charged to the
contractor by deducting from the contract price), instead of additive
(meaning, charged to the owner). Petitioner intimated that he can
forget about the deductive provided he gets P200,000.00, a chunk of
the contractor's profit which he roughly estimated to be around
P460,000.00 (pp. 12-13, 22, Ibid.).
5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the owner
of Sta. Maria Construction Company, Resoso thereafter asked
petitioner if he wanted a rendezvous for him to receive the money.
Petitioner chose Wendy's Restaurant, corner E. Delos Santos
Avenue and Camias Street, on June 6, 1990 at around 8:00 o'clock in
the evening (p. 14, Ibid.).
6. However, Sta. Maria, Sr. asked for two (2) more days or until the
8th of June, perceiving financial constraints (Ibid.).
7. Petitioner relented, saying "O.K. lang with me because we are not
in a hurry." (p. 15, Ibid.) Petitioner was thereafter asked to bring along
the result of the punch list (meaning, the list of defective or correctible
works to be done by the contractor) (p. 15, Ibid.; p. 10, TSN, 18 Oct.
1991).
8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded to the
National Bureau of Investigation (NBI) to report the incident (p. 15,
35, Ibid.).
9. The NBI suggested an entrapment plan to which Sta. Maria, Sr.
signified his conformity (p. 16, TSN, 12 Oct. 1990). Accordingly, Sta.
Maria, Sr. was requested to produce the amount of P50,000.00 in
P500.00 denomination to represent the grease money (p. 37, TSN, 6
Sept. 1990).
10. The next day, or on 8 June 1990, Resoso delivered the money to
the NBI. Thereafter, the money was dusted with flourescent powder
and placed inside an attache case (pp. 16-17, Ibid.). Resoso got the
attache case and was instructed not to open it. Similarly, he was
advised to proceed at the Wendy's Restaurant earlier than the
designated time where a group of NBI men awaited him and his
companion, Sta. Maria, Jr. (pp. 17-18, Ibid.).
11. Hence, from the NBI, Resoso passed by the Jade Valley
Restaurant in Timog, Quezon City, to fetch Sta. Maria, Jr. (Ibid.).
12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at the
Wendy's Restaurant. They were led by the NBI men to a table
previously reserved by them which was similarly adjacent to a table
occupied by them (pp. 18-19, Ibid.).
13. Twenty minutes later, petitioner arrived. Supposedly, the following
conversation took place, to wit:
JUSTICE BALAJADIA:
q. When Dave Preclaro arrived, what
did he do?
a. We asked him his order and we
talked about the punch list.
q. What was his comment about the
punch list?
a. He told us that it is harder to
produce small items than big ones.
q. How long did you converse with
Engr. Claro Preclaro?
a. I think thirty minutes or so.
q. Was Preclaro alone when he
came?
a. Yes, Your Honor.
xxx xxx xxx
PROS. CAOILI:
q. When you talk[ed] about his
punch list, did you talk about
anything else?
a. Engineer Sta. Maria, Jr., they
were conversing with Dave Preclaro
and he told [him], "O, paano na."
JUSTICE ESCAREAL:
q. Who said "Paano na?"
a. Engineer Sta. Maria, [Jr.]. And
then Preclaro told [him], "Paano,
How will the money be arranged and
can I bring it?" he said.
And then Jimmy Sta. Maria, Jr. told
him it was arranged on two bundles
on two envelopes.
And then Dave Preclaro told,
"Puede" and he asked Jimmy Sta.
Maria, Jr. if there is express teller
and could he deposit during night
time but Engineer Sta. Maria, Jr. told
him, "I do not have any knowledge or
I do not have any express teller you
can deposit. I only know credit card."
PROS. CAOILI:
q. When Engr. Sta. Maria intervened
and interviewed him that way, was
there anything that happened?
a. Jimmy Sta. Maria, Jr. handed two
envelopes to Preclaro.
q. Did Claro Preclaro receive these
two envelopes from Engineer Sta.
Maria?
a. Yes, sir. (pp. 19-21, Ibid., See
also pp. 13-14, TSN, 29 Oct. 1990.)
14. From the moment petitioner received the two envelopes with his
right hand, thereafter placing them under his left armpit, he was
accosted by the NBI men (p. 22, TSN, 12 Oct. 1990).
15. A camera flashed to record the event. Petitioner instinctively
docked to avoid the taking of pictures. In such manner, the two
envelopes fell (p. 23, Ibid.).
 16. The NBI men directed petitioner to pick up the two envelopes.
Petitioner refused. Hence, one of the NBI men picked up the
envelopes and placed them inside a big brown envelope (p. 27, Ibid.)
17. Petitioner was thenceforth brought to the NBI for examination (p.
28; Ibid.).
18. At the NBI Forensic Chemistry Section, petitioner's right palmar
hand was tested positive of flourescent powder. The same
flourescent powder, however, cannot be detected in petitioner's T-
shirt and pants (p. 5, TSN, 29 Oct. 1990). 7
xxx xxx xxx
Thus, as brought out at the outset, an information was filed against petitioner
which, after due hearing, resulted in his conviction by the Sandiganbayan.
Not satisfied with the decision, petitioner instituted the present petition for
review, ascribing to the Sandiganbayan the following errors:
1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF
THE CASE, INSTEAD OF DISMISSING IT FOR LACK OF
JURISDICTION, THE [PETITIONER] NOT BEING A PUBLIC
OFFICER; and
2. THE SANDIGANBAYAN ERRED IN NOT RULING THAT NOT
ALL THE ELEMENTS OF THE OFFENSE CHARGED HAVE BEEN
ESTABLISHED BEYOND REASONABLE DOUBT AND/OR THAT
THE GUILT OF THE [PETITIONER] HAS NOT BEEN
ESTABLISHED BEYOND REASONABLE DOUBT.
We find the petition unmeritorious.
On the first issue, petitioner asserts that he is not a public officer as defined
by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019 as
amended), because he was neither elected nor appointed to a public office.
Rather, petitioner maintains that he is merely a private individual hired by the
ITDI on contractual basis for a particular project and for a specified period 8 as
evidenced by the contract of services 9 he entered into with the ITDI.
Petitioner, to further support his "theory," alleged that he was not issued any
appointment paper separate from the abovementioned contract. He was not
required to use the bundy clock to record his hours of work and neither did he
take an oath of office. 10
We are not convinced by petitioner's arguments.
Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which,
according to Sec. 2(b) thereof "includes elective and appointive officials and
employees, permanent or temporary, whether in the classified or unclassified
or exemption service receiving compensation, even nominal, from the
government. . . ."
The word "includes" used in defining a public officer in Sec. 2(b) indicates that
the definition is not restrictive. The terms "classified, unclassified or
exemption service" were the old categories of positions in the civil service
which have been reclassified into Career Service and Non-Career Service 11
by PD 807 providing for the organization of the Civil Service Commission 12
and by the Administrative Code of 1987. 13
Non-career service in particular is characterized by —
(1) entrance on bases other than those of the usual test of merit and
fitness utilized for the career service; and (2) tenure which is limited
to a period specified by law, or which is coterminous with that of the
appointing authority or subject to his pleasure, or which is limited to
the duration of a particular project for which purpose employment
was made.
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their
positions at the pleasure of the President and their personal or
confidential staff(s);
(3) Chairman and members of commissions and boards with fixed
terms of office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the
government is in accordance with a special contract to undertake a
specific work or job, requiring special or technical skills not available
in the employing agency, to be accomplished within a specific period,
which in no case shall exceed one year, and performs or
accomplishes the specific work or job, under his own responsibility
with a minimum of direction and supervision from the hiring agency;
and
14
(5) Emergency and seasonal personnel. (Emphasis ours.)
From the foregoing classification, it is quite evident that petitioner falls under
the non-career service category (formerly termed the unclassified or
exemption service) of the Civil Service and thus is a public officer as defined
by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019).
The fact that petitioner is not required to record his working hours by means
of a bundy clock or did not take an oath of office became unessential
considerations in view of the above-mentioned provision of law clearly
including petitioner within the definition of a public officer.
Similarly, petitioner's averment that he could not be prosecuted under the
Anti-Graft & Corrupt Practices Act because his intervention "was not required
by law but in the performance of a contract of services entered into by him as
a private individual contractor," 15 is erroneous. As discussed above,
petitioner falls within the definition of a public officer and as such, his duties
delineated in Annex "B" of the contract of services 16 are subsumed under the
phrase "wherein the public officer in his official capacity has to intervene
under the law." 17 Petitioner's allegation, to borrow a cliche, is nothing but a
mere splitting of hairs.
Among petitioner's duties as project manager is to evaluate the contractor's
accomplishment reports/billings 18 hence, as correctly ruled by the
Sandiganbayan he has the "privilege and authority to make a favorable
recommendation and act favorably in behalf of the government," signing
acceptance papers and approving deductives and additives are some
examples. 19 All of the elements of Sec. 3(b) of the Anti-Graft & Corrupt
Practices Act are, therefore, present.
Anent the second issue, we likewise find Petitioner's allegations completely
bereft of merit.
Petitioner insists that the prosecution has failed to establish his guilt beyond
reasonable doubt and that the charges against him should be rejected for
being improbable, unbelievable and contrary to human nature.
We disagree.
Proof beyond reasonable doubt does not mean that which produces absolute
certainty. Only moral certainty is required or "that degree of proof which
produces conviction in an unprejudiced mind." 20 We have extensively
reviewed the records of this case and we find no reason to overturn the
findings of the Sandiganbayan.
Petitioner enumerates the alleged improbabilities and inconsistencies in the
testimonies of the prosecution witnesses. We shall examine the testimonies
referred to with meticulousness.
Petitioner asserts that it was improbable for him to have demanded
P200,000.00 from Engr. Resoso, when he could have just talked directly to
the contractor himself. It is quite irrelevant from whom petitioner demanded
his percentage share of P200,000.00 whether from the contractor's project
engineer, Engr. Alexander Resoso or directly from the contractor himself
Engr. Jaime Sta. Maria Sr. That petitioner made such a demand is all that is
required by Sec. 3(b) of R.A. No. 3019 and this element has been sufficiently
established by the testimony of Engr. Resoso, thus:
xxx xxx xxx
Q You said when you were computing your Change
Order Mr. Preclaro or Dave Preclaro whom you
identified approached you, what did you talk about?
A He mentioned to me that we are deductive in our
Change Order three and four so after our
conversation I told this conversation to my boss that
we are deductible in the Change Order three and
four and then my boss told me to ask why it is
deductive.
Q Did you ask the accused here, Dave Preclaro why
it is considered deductive?
A Yes, sir.
Q What was his answer if any?
A I asked him that my boss is asking me to ask you
how come it became deductive when my
computation is additive and he told me that I have
done so much for your company already and then he
picked up cement bag paper bag and computed our
alleged profit amounting to One Hundred Sixty
Thousand Pesos and then he told me that he used to
use some percentage in projects maximum and
minimum and in our case he would use a minimum
percentage and multiply to 60 and . . .
JUSTICE ESCAREAL:
Q What is 460? A The next day he told me to ask Dave where and
when to pick up the money so the next day I asked
A P460,000.00 and he said take of the butal and get Dave "Where do you intend to get the money, the
two Hundred Thousand Pesos. Boss wanted to know."

JUSTICE BALAJADIA: Q What was the answer of Dave?

What is the translation now? A And he told me, Wendy's Restaurant at 3:00
o'clock.
WITNESS:
Q When?
A And he said disregard the excess and I will just get
the P200,000.00. (Emphasis ours.) A June 6 Wednesday.

PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to
your boss. (Emphasis ours.)
JUSTICE BALAJADIA:
Q What is P200,000.00?
A It is Two Hundred Thousand Pesos.
PROS. CAOILI:
Q What did you answer him when he told you that?
A He told me to forget the deductive and electrical
and after that I told my boss what he told me.
Q When he told you that did you comply with June 6
appointment?
A I told my boss what he told me again that the
meeting will take place at Wendy's Restaurant corner
Edsa and Camias Street at around 8:00 o'clock p.m.
June 6, Wednesday.
Q What did your boss tell you?
A The next day he told me to ask Dave.
Q What did your boss tell you?
A My boss told me to ask Dave to postpone the
meeting on June 6 to be postponed on June 8 at the
same place and same time because my boss is
having financial problem.
Q Did you relay the postponement to Dave Preclaro?
A Yes sir. I told what my boss told me.

Q Who is your boss? Q What was his reaction?

A Santa Maria Sr.
Q What was the reaction of your boss when you
relayed the message to Mr. Preclaro?
A Dave told me "O.K. lang with me" because we are
not in a hurry. Any way we are the ones to sign the
acceptance papers and my boss instructed me that
on Friday to ask Dave to bring along the result of the
punch list and if possible also to bring along the
 acceptance papers to be signed by Dave, Lydia
Mejia and Dr. Lirag the director.
Q What happened next after meeting with Preclaro to
relay the postponement if any?
A Nothing happened. The next day, Thursday the
boss instructed me to go with him to the NBI to give a
statement.
Q Did you go to the NBI and report to the incident to
the NBI?
A Yes sir.
Q Did you give a statement before any of the agents
of the of the NBI?
A Yes sir. 21
xxx xxx xxx
Likewise, petitioner's alleged refusal to see Mr. Jaime Sta. Maria Sr. when the
latter tried to arrange meetings with him regarding his demand 22 does not
weaken the cause against petitioner. It does not at all prove that petitioner did
not ask for money. Conceivably petitioner did not muster enough courage to
ask money directly from the contractor himself. Getting the amount through
the project engineer would be safer because if Mr. Sta. Maria, Sr. had refused
to give money, petitioner could always deny having made the demand.
Petitioner contends that the percentage demanded in the amount of
P200,000.00 is too high considering that the estimated profit of the contractor
from the CMD project is only P460,000.00. In petitioner's words, this would
"scare the goose that lays the golden egg." 23 We reject this argument. The
aforementioned contractor's profit is petitioner's own computation as testified
to by Engr. Resoso:
xxx xxx xxx
A I asked him that my boss is asking me to ask you
how come it became deductive when my
computation is additive and he told me that I have
done so much for your company already and then he
picked up cement bag paper bag and computed our
alleged profit amounting to One Hundred Sixty
Thousand Pesos and then he told me that he used to
use some percentage in projects maximum and
minimum and in our case he would use a minimum
percentage and multiply to 460 and . . . (Emphasis
ours.)
JUSTICE ESCAREAL:
Q What is 460?
A P460,000.00 and it ended to P215 thousand or
P20,000.00 and he said take of the butal and get the
Two Hundred Thousand Pesos. (Emphasis ours.)
JUSTICE BALAJADIA:
What is the translation now?
WITNESS:
A And he said disregard the excess and I will just get
the P200,000.00.
PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to
your boss. 24
xxx xxx xxx
The records, however, do not show the true and actual amount that the Sta.
Maria Construction will earn as profit. There is, therefore, no basis for
petitioner's contention as the actual profit may be lower or higher than his
estimation.
Besides, as related by Engr. Resoso, petitioner considers the P200,000.00
percentage proper compensation since he has allegedly done so much for
the Sta. Maria construction company. 25
Petitioner also argues that:
According to STA. MARIA, SR., they were deductive by P280,000.00
(Id., pp. 34-35).
If STA. MARIA CONSTRUCTION was deductive in the amount of
P280,000.00, why would the petitioner still demand P200,000.00
which would increase the contractor's loss to P480,000.00!
It might have been different if the changes were additive where STA.
MARIA CONSTRUCTION would have earned more, thereby
providing motive for the petitioner to ask for a percentage! 26
But this is precisely what petitioner was bargaining for — P200,000.00 in
exchange for forgetting about the deductive 27 and thus prevent the Sta. Maria
Construction from incurring losses.
Petitioner's contention that it was impossible for him to make any demands
because the final decision regarding accomplishments and billing lies with the
DOST technical committee is unacceptable. Petitioner is part of the
abovementioned technical committee as the ITDI representative consultant.
This is part of his duties under the contract of services in connection with
which he was employed by the ITDI. Even, assuming arguendo that petitioner
does not make the final decision, as supervisor/consultant, his
recommendations will necessarily carry much weight. Engr. Resoso testified
thus:
PROS. CAOILI:
Q As a Project Engineer to whom do you present
your billing papers accomplishment report or
purchase order?
A The billing paper was being taken cared of by the,
of our office. I personally do my job as supervision in
the construction.
Q Do you have any counterpart to supervise the
project from the government side?
A Yes, we have.
Yes, the DOST have a technical Committee Infra-
Structure Committee and also the ITDI as its own
representative.
Q Who composed the Technical Committee of the
DOST?
A A certain Engineer Velasco, Engineer Sande
Banez and Engineer Mejia.
Q How about the ITDI?
A The ITDI representative composed of Dave
Preclaro.
Q Who is this Dave Preclaro?
A He is the consultant of ITDI. (Emphasis ours.)
xxx xxx xxx
ATTY. CAOILI:
Q As Project Engineer do you consult to any body
regarding your job?
A First if there is any problem in the site I consult my
boss.
PROS. CAOILI:
Q How about with the other consultants representing
the ITDI and DOST?
A In the construction site we have meeting every
Monday to discuss any problem.
Q With whom do you discuss this problem?
A The Infra-structure Committee of DOST and the
Infra-structure Committee of ITDI, the architect and
the contractor. We had weekly meetings.
Q What matters if any do you consult with Mr. Claro Petitioner also claims that the testimonies of the prosecution witnesses
Preclaro? regarding the entrapment itself are conflicting, doubtful or improbable:

ATTY. JIMENEZ: (aaa) according to RESOSO, only FOUR (4) P500 bills were dusted
with flourescent powder and used in the alleged entrapment.
No basis.
Contradicting RESOSO, STA. MARIA, SR. said that he gave fifty
JUSTICE ESCAREAL: thousand (P50,000.00) pesos in P500 denomination to the NBI. 29

They met on problems on Mondays.
ATTY. JIMENEZ:
But there is no mention of Preclaro specifically.
JUSTICE ESCAREAL:
With the representative of DOST and Preclaro
ATTY. JIMENEZ:
Does that also mean that Preclaro is also among the
representatives he is going to consult with?
Well any way. . .
JUSTICE ESCAREAL:
Witness may answer the question.
There is no such inconsistency. Said witnesses were testifying on two
different subjects. Engr. Sta. Maria, Sr.'s testimony touched on the amount he
gave the NBI for use in the entrapment while Engr. Resoso's declaration
referred only to the number of bills dusted with flourescent powder.
Petitioner, likewise, misappreciated the following testimony of Resoso:
PROS. CAOILI:
Q What did he do with the two envelopes upon
receiving the same?
A Then he asked Jaime Sta. Maria, Jr. if there is
bank teller express, if he could deposit the money but
Mr. Sta. Maria said, "I do not have, I only have credit
cards." 30
Petitioner intended to deposit the money in his own account not that of Mr.
Sta. Maria, Jr. He was merely inquiring from the latter if there was an express
teller nearby where he could make the deposit. Mr. Sta. Maria Jr. himself
testified as follows:

Read back the question. A He asked me if there was express teller. I told him I
do not know then he asked me whether it is possible
COURT STENOGRAPHER: to deposit at the Express Teller at that time. I told him
I don't know because I have no express teller card
and he asked me how am I going to arrange, how
Reading back the question as ordered by the Court.
was it arranged if I will bring it, can I bring it. Then I
told him that it was placed in two envelopes
WITNESS: consisting of 500 Peso bills and then he said "Okay
na yan." 31
A Every Monday meeting we tackle with
accomplishment report the billing papers. 28 The failure of the NBI to take photographs of the actual turn-over of the
(Emphasis ours.) money to petitioner is not fatal to the People's cause. The transaction was
witnessed by several people, among whom were Engr. Resoso, Mr. Sta.
xxx xxx xxx
Maria Jr. and the NBI agents whose testimonies on the circumstances before, A We intended but during that time we cannot take
during and after the turn-over are consistent, logical and credible. photographs at the time of the handling because the
flash will alert the suspect. (Emphasis ours.)
According to NBI Agent Francisco Balanban Sr., they purposely took no
photographs of the actual turn-over so as not to alert and scare off the JUSTICE ESCAREAL:
petitioner. During cross-examination Agent Balanban Jr. stated:
Why did you not position the photographer to a far
xxx xxx xxx distance place with camera with telescopic lens?

Q Now, of course, this entrapment operation, you A We did not Your Honor.
made certain preparation to make sure that you
would be able to gather evidence in support of the ATTY. JIMENEZ:
entrapment?
So was it your intention to take photographs only at
A Yes sir. the time that he is already being arrested?

Q As a matter of fact you even brought photographer A Yes sir. 32

for the purpose?
xxx xxx xxx
A That is right sir.
Petitioner insists that when his hands were placed under ultra-violet light,
Q And that photographer was precisely brought both were found negative for flourescent powder. This is petitioner's own
along to record the entrapment? conclusion which is not supported by evidence. Such self-serving statement
will not prevail over the clear and competent testimony and the report 33
A Yes sir. submitted by the forensic expert of the NBI Ms. Demelen R. dela Cruz, who
was the one who conducted the test and found petitioner's right palmar hand
Q From the beginning to the end, that was the positive for flourescent powder, the same hand he used, according to
purpose? witnesses Resoso and Sta. Maria Jr., to get the money from the latter.

A At the time of the arrest sir. xxx xxx xxx

ATTY. JIMENEZ: Q Mrs. dela Cruz since when have you been a
Forensic Chemist at NBI?
From the time of the handing over of the envelopes
until the entrapment would have been terminated? A Since 1981 sir.

A No sir we plan to take the photograph only during Q JUSTICE ESCAREAL:

the arrest because if we take photographs he would
be alerted during the handing of the envelopes. Q By the way, is the defense willing to admit that the
(Emphasis ours.) witness is a competent as . . . .

Q So you did not intend to take photographs of the ATTY. JIMENEZ:

act of handing of the envelopes to the suspect?
Admitted Your Honor.
PROS. CAOILI:
Madam Witness did you conduct a forensic
examination in the person of one Dave Preclaro y
Jambalos?
A Yes sir.
Q If that person whom you examined is here in court
would you be able to recognize him?
ATTY. JIMENEZ:
We admit that the accused is the one examined by
the witness.
ATTY. CAOILI:
Did you prepare the result of the examination in
writing?
A Yes sir.
PROS. CAOILI:
Showing to you Physic Examination No. 90-961
which for purposes of identification has already been
marked as Exh. H what relation has this have with
the report that you mentioned a while ago?
A This is the same report that I prepared sir.
Q How did you conduct such flourescent
examination?
A The left and right hands of the accused were
placed under the ultra violet lamp sir.
Q What was the result?
A It gave a . . . under the ultra violent lamp the
palmer hands of the suspect gave positive result for
the presence of flourescent powder.
Q What palmar hands?
A Right hand sir.
Q What other examination did you conduct?
A And also the clothing, consisting of the t-shirts and
the pants were examined. Under the ultra violet lamp
the presence of the flourescent powder of the t-shirts
and pants cannot be seen or distinguished because
the fibers or the material of the cloth under the ultra
violet lamp was flouresce.
Q Please tell the Court why the t-shirts and pants
under the ultra violent lamp was flouresce?
A The materials or the fibers of the clothings it could
have been dyed with flourescent dyes sir. 34
xxx xxx xxx
What we find improbable and contrary to human experience is petitioner's
claim that he was set up by Engr. Sta. Maria Sr. and Engr. Resoso for no
other purpose but revenge on account, for petitioner's failure to recommend
the Sta. Maria Construction to perform the extra electrical works. 35
The Sandiganbayan has aptly ruled on this matter, thus:
For another, the claim of accused that there was ill-will on the part of
the construction company is hardly plausible. It is highly improbable
for the company to embark on a malicious prosecution of an innocent
person for the simple reason that such person had recommended the
services of another construction firm. And it is extremely impossible
for such company to enlist the cooperation and employ the services
of the government's chief investigative agency for such an anomalous
undertaking. It is more in accord with reason and logic to presuppose
that there was some sort of a mischievous demand made by the
accused in exchange for certain favorable considerations, such as,
favorable recommendation on the completeness of the project,
hassle-free release of funds, erasure of deductives, etc. Indeed, the
rationale for the occurrence of the meeting and the demand for
money is infinite and boundless. 36
As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who
was then engaged in the construction of another DOST building, would not
risk his business or livelihood just to exact revenge which is neither profitable 10 Id., at 11-12.
nor logical. As we aptly stated in Maleg v. Sandiganbayan: 37
11 de Leon, Hector S. & de Leon, Hector M. Jr., Law on Public
It is hard to believe that the complainant who is a contractor would Officers & Election Law (1990 ed.), pp. 64-66.
jeopardize and prejudice his business interests and risk being
blacklisted in government infrastructure projects, knowing that with 12 Promulgated on 6 October 1975.
the institution of the case, he may find it no longer advisable nor
profitable to continue in his construction ventures. It is hardly 13 Book V, Title I, Subtitle A, Chapter 2, Sec. 6(2).
probable that the complainant would weave out of the blue a serious
accusation just to retaliate and take revenge on the accused.
14 Id., sec. 9.
From the foregoing, the conclusion is inescapable that on the basis of the
testimonial and documentary evidence presented during the trial, the guilt of 15 Rollo, p. 15.
petitioner has been established beyond reasonable doubt.
16 JOB DESCRIPTION (PROJECT MANAGER)
WHEREFORE, the appealed decision of the Sandiganbayan is hereby Check contractor's daily activities to
AFFIRMED. conform with schedule;
Check quality of construction;
Evaluate contractor's accomplishments
SO ORDERED. reports/billings;
Advise on time saving construction method;
Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur. Check adequacy of material supply for
scheduled construction scope of work;
  Advise on adequacy of equipment and manpower.

Footnotes 17 Sec. 3(b), RA No. 3019, otherwise known as the Anti-Graft &
Corrupt Practices Act.
1 Rollo, p. 31.
18 See Note 15.
2 Id., at 65.
19 Rollo, p. 301.
3 Respondents' Comment, Rollo, p. 78; Petition, Rollo, p. 13.
20 Sec. 2, Rule 133 of the Revised Rules on Evidence.
4 Petition, Rollo, p. 13.
21 TSN, 6 September 1990, pp. 12-13.
5 Respondents' Comment, Rollo, p. 79.
22 Id., Id. at 41-42.
6 Sandiganbayan Decision dated 30 June 1993; Rollo, p. 32.
23 Rollo, p. 17.
7 Respondent's Comment, Rollo, pp. 79-84.
24 TSN, 6 September 1990, pp. 12-13.
8 Petition, Rollo, p. 12.
25 Id. at 12.
9 Id., at 12-13.
 26 Rollo, p. 18. Llorente and Yumul for petitioner.
Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto M.
27 TSN, 6 September 1990, p. 13. Luciano for respondent.

28 Id. at 8-11. BENGZON, J.:

29 Rollo, p. 20. This petitioner was convicted, by the Fifth Division of the Court of Appeals, of
a violation of article 210 of the Revised Penal Code. He pleads for acquittal,
insisting upon purely legal points.
30 TSN, 6 September 1990, p. 21.

The facts found by that appellate court are substantially the following:
31 TSN, 29 October 1990, p. 13.

That on February 27, 1947, the accused, although appointed

32 TSN, 12 October 1990, pp. 29-30.
as a laborer, had been placed in charge of issuing summons
and subpoenas for traffic violations in the Sala of Judge
33 Original Records, Exhibits H to H-4. Crisanto Aragon of the Municipal Court of the City of Manila.
It appears furthermore, from the testimony of Clerk of Court
34 TSN, 29 October 1990, pp. 4-5. Baltazar and Fiscal De la Merced, then Deputy Fiscal
attending to traffic violations, that the accused had been
35 Rollo, p. 25. permitted to write motions for dismissal of prescribed traffic
cases against offenders without counsel, and to submit them
36 Id. at 296-297. to the Court for action, without passing through the regular
clerk. On the day in question, Felix Rabia, the complainant
herein, appeared and inquired from the accused about a
37 160 SCRA 623 (1988).
subpoena that he received. He was informed that it was in
connection with a traffic violation for which said Rabia had
been detained and given traffic summons by an American
The Lawphil Project - Arellano Law Foundation MP. The accused after a short conversation went to Fiscal
De la Merced and informed the Fiscal that the case had
already prescribed. The Fiscal having found such to be the
case, instructed the accused that if the traffic violator had no
lawyer, he could write the motion for dismissal and have it
Republic of the Philippines signed by the party concerned. This was done by the
SUPREME COURT accused and after the signing by Felix Rabia the matter was
Manila submitted to the Court, which granted the petition for
dismissal.
EN BANC
According to Felix Rabia and Agent No. 19 (La forteza) of the
National Bureau of Investigation, the accused informed Rabia
G.R. No. L-2971             April 20, 1951
that the latter was subject to a fine of P15; that Rabia
inquired whether the same could be reduced because he had
FELICIANO MANIEGO y CATU, petitioner, no money, and that the accused informed Rabia that he
vs. could fix the case if Rabia would pay him P10; which Rabia
THE PEOPLE OF THE PHILIPPINES, respondent. did and the accused pocketed. This charged was denied by
the accused.
The pertinent portion of article 210 of the Revised Penal Code reads:
Any public officer who shall agree to perform an act
constituting a crime, in connection with the performance of
his official duties, in consideration of any offer, promise, gift
or present received by such officer, personally or through the
mediation of another, shall suffer the penalty of prision
correccional in its minimum and medium periods and fine of
not lees than the value to the penalty corresponding to the
crime agreed upon if the same shall have been committed.
If the gift was accepted by the officer in consideration of the
execution of an act which does not constitute a crime, and
the officer executed said act, he shall suffer the same penalty
provided in the preceding paragraph. . . .
As correctly indicated by counsel for petitioner the four essential elements of
the offense are: (1) the the accused is a public officer within the scope of
article 203 of the Revised Penal Code; (2) that the accused received by
himself or thru another, some gift or present, offer or promise; (3) that such
gift, present or promises has been given in consideration of his commission of
some crime or any act not constituting a crime; (4) that the crime or act
relates to the exercise of the functions of the public officer.
There can be no question that petitioner was a public officer within the
meaning of article 203, which includes all persons "who, by direct provision of
law, popular election or appointment by competent authority, shall take part in
the performance of public functions in the Philippine Government, or shall
perform in said government or any of its branches, public duties as an
employee, agent or subordinate official or any rank or class." That definition is
quite comprehensive, embracing as it does, every public servant from the
highest to the lowest. For the purposes of the Penal Code, it obliterates the
standard distinction in the law of public officers between "officer" and
"employee".
Petitioner, however, contending that the Court of Appeals erred in regarding
him as a public officer, expounded and discussed several grounds arranged
under the following hearings:
a. The doctrine of "the temporary performance of public
functions by a laborer" should not apply in defendant's case.
b. The overt act imputed on the accused does not constitute
a circumstance by which he may be considered a public
official.
c. His appointment as laborer came from one source, while
the designation and delimitation of the functions of his
appointment came from another source.
After having carefully considered the expository argumentation, we are
unconvinced. The law is clear, and we perceive no valid reason to deny
validity to the view entertained by the Spanish Supreme Court that, for the
purposes of punishing bribery, the temporary performance of public functions
is sufficient to constitute a person a public official. This opinion, it must be
stated, was followed and applied by the Court of Appeals because the
accused, although originally assigned to the preparation of summons and
subpoenas, had been allowed in some instance to prepare motions for
dismissal of traffic cases.
And this Tribunal has practically concurred with the Spanish court when it
opined1 that a laborer in the Bureau of Post temporarily detailed as filer of
money orders was a public officer within the meaning of article 203 of the
Revised Penal Code. Indeed, common sense indicates that the receipt of
bribe money is just as pernicious when committed by temporary employees
as when committed by permanent officials.
The second essential element has likewise been proven. The Court of
Appeals said this petitioner received ten pesos from Rabia (and pocketed the
money) in consideration of his "fixing" Rabia's case, and thereafter he "fixed"
it by filing a motion for dismissal, which was approved in due course.
In connection with the last two elements of the offense, it should be stated
that our pronouncements under the first sufficiently answer petitioner's
propositions elaborated in several parts of his brief, revolving around the
thesis that since he was a mere laborer by appointment he may not be
convicted, because the preparation of motions for dismissal is not surely the
official function of a laborer. Enough to recall that although originally
appointed as a mere laborer, this defendant was on several occasions
designated or given the work to prepare motions for dismissal. He was
consequently temporarily discharging such public functions. And as in the
performance thereof he accepted, even solicited, monetary reward, he
certainly guilty as charged.
Wherefore, there being no issue about the penalty imposed, the decision of
the Court of Appeals is affirmed in toto. With costs.
Paras, C.J., Feria, Pablo, Tuason, Montemayor, Jugo and Bautista Angelo,
JJ., concur.
Footnotes
1
People vs. Palomo, 40 Off. Gaz., 10th Supp. p. 2087.
The Lawphil Project - Arellano Law Foundation
PHILIPPINE JURISPRUDENCE - FULL TEXT
The Lawphil Project - Arellano Law Foundation
G.R. No. 145368           April 12, 2002
SALVADOR H. LAUREL vs. HON. ANIANO A.
DESIERTO, ETC.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 145368            April 12, 2002
SALVADOR H. LAUREL, petitioner,
vs.
HON. ANIANO A. DESIERTO, in his capacity as Ombudsman,
respondent.
KAPUNAN, J.:
On June 13, 1991, President Corazon C. Aquino issued
Administrative Order No. 223 "constituting a Committee for the
preparation of the National Centennial Celebration in 1998." The
Committee was mandated "to take charge of the nationwide
preparations for the National Celebration of the Philippine Centennial
of the Declaration of Philippine Independence and the Inauguration of
the Malolos Congress."1
Subsequently, President Fidel V. Ramos issued Executive Order No.
128, "reconstituting the Committee for the preparation of the National
Centennial Celebrations in 1988." It renamed the Committee as the
"National Centennial Commission." Appointed to chair the
reconstituted Commission was Vice-President Salvador H. Laurel.
Presidents Diosdado M. Macapagal and Corazon C. Aquino were
named Honorary Chairpersons.2
Characterized as an "i body," the existence of the Commission "shall
terminate upon the completion of all activities related to the
Centennial Celebrations."3 Like its predecessor Committee, the
Commission was tasked to "take charge of the nationwide
preparations for the National Celebration of the Philippine Centennial
of the Declaration of Philippine Independence and the Inauguration of
the Malolos Congress."
Per Section 6 of the Executive Order, the Commission was also
charged with the responsibility to "prepare, for approval of the
President, a Comprehensive Plan for the Centennial Celebrations
within six (6) months from the effectivity of" the Executive Order.
E.O. No. 128 also contained provisions for staff support and funding:
Sec. 3. The Commission shall be provided with technical and
administrative staff support by a Secretariat to be composed
of, among others, detailed personnel from the Presidential
Management Staff, the National Commission for Culture and
the Arts, and the National Historical Institute. Said Secretariat
shall be headed by a full time Executive Director who shall be
designated by the President.
Sec. 4. The Commission shall be funded with an initial
budget to be drawn from the Department of Tourism and the
president’s Contingent Fund, in an amount to be
recommended by the Commission, and approved by the
President. Appropriations for succeeding years shall be
incorporated in the budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial Expo
’98 Corporation (Expocorp) was created.4 Petitioner was among the
nine (9) Expocorp incorporators, who were also its first nine (9)
directors. Petitioner was elected Expocorp Chief Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a
privilege speech in the Senate denouncing alleged anomalies in the
construction and operation of the Centennial Exposition Project at the
Clark Special Economic Zone. Upon motion of Senator Franklin
Drilon, Senator Coseteng’s privilege speech was referred to the
Committee on Accountability of Public Officers and Investigation (The
Blue Ribbon Committee) and several other Senate Committees for
investigation.
On February 24, 1999, President Joseph Estrada issued
Administrative Order No. 35, creating an ad hoc and independent
citizens’ committee to investigate all the facts and circumstances
surrounding the Philippine centennial projects, including its
component activities. Former Senator Rene A.V. Saguisag was
appointed to chair the Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the
Secretary of the Senate its Committee Final Report No. 30 dated
February 26, 1999. Among the Committee’s recommendations was
"the prosecution by the Ombudsman/DOJ of Dr. Salvador Laurel,
chair of NCC and of EXPOCORP for violating the rules on public
bidding, relative to the award of centennial contracts to AK (Asia
Construction & Development Corp.); for exhibiting manifest bias in
the issuance of the NTP (Notice to Proceed) to AK to construct the
FR (Freedom Ring) even in the absence of a valid contract that has
caused material injury to government and for participating in the
scheme to preclude audit by COA of the funds infused by the
government for the implementation of the said contracts all in
violation… of the anti-graft law."5
Later, on November 5, 1999, the Saguisag Committee issued its own
report. It recommended "the further investigation by the Ombudsman,
and indictment, in proper cases of," among others, NCC Chair
Salvador H. Laurel for violations of Section 3(e) of R.A. No. 3019,
Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article
217 of the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee
were apparently referred to the Fact-finding and Intelligence Bureau
of the Office of the Ombudsman. On January 27, 2000, the Bureau
issued its Evaluation Report, recommending:
1. that a formal complaint be filed and preliminary
investigation be conducted before the Evaluation and
Preliminary Investigation Bureau (EPIB), Office of the
Ombudsman against former NCC and EXPOCORP chair
Salvador H. Laurel, former EXPOCORP President Teodoro
Q. Peña and AK President Edgardo H. Angeles for violation
of Sec. 3(e) and (g) of R.A. No. 3019, as amended in relation
to PD 1594 and COA Rules and Regulations;
2. That the Fact Finding and Intelligence Bureau of this
Office, act as the nominal complainant.6
In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of
the Evaluation and Preliminary Investigation Bureau, directed
petitioner to submit his counter-affidavit and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a
Motion to Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioner’s
motion to dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June
13, 2000 Order but the motion was denied in an Order dated October
5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation
Bureau issued a resolution finding "probable cause to indict
respondents SALVADOR H. LAUREL and TEODORO Q. PEÑA
before the Sandiganbayan for conspiring to violate Section 3(e) of
Republic Act No. 3019, in relation to Republic Act No. 1594." The
resolution also directed that an information for violation of the said
law be filed against Laurel and Peña. Ombudsman Aniano A.
Desierto approved the resolution with respect to Laurel but dismissed
the charge against Peña.
In a Resolution dated September 24, 2001, the Court issued a
temporary restraining order, commanding respondents to desist from
filing any information before the Sandiganbayan or any court against
petitioner for alleged violation of Section 3(e) of the Anti-Graft and
Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard
the parties in oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground
that he is not a public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER
LAUREL WHICH UNDERTOOK THE FREEDOM RING PROJECT IN
CONNECTION WITH WHICH VIOLATIONS OF THE ANTI-GRAFT
AND CORRUPT PRACTICES WERE ALLEGEDLY COMMITTED,
WAS A PRIVATE CORPORATION, NOT A GOVERNMENT-OWNED
OR CONTROLLED CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A
PUBLIC OFFICE.
The foregoing ruling in Uy, however, was short-lived. Upon motion for
clarification by the Ombudsman in the same case, the Court set aside
C.
the foregoing pronouncement in its Resolution dated March 20, 2001.
The Court explained the rationale for this reversal:
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF
EXPOCORP WAS NOT A "PUBLIC OFFICER" AS DEFINED
UNDER THE ANTI-GRAFT & CORRUPT PRACTICES ACT.7
In addition, petitioner in his reply8 invokes this Court’s decision in Uy
vs. Sandiganbayan,9 where it was held that the jurisdiction of the
Ombudsman was limited to cases cognizable by the Sandiganbayan,
i.e., over public officers of Grade 27 and higher. As petitioner’s
position was purportedly not classified as Grade 27 or higher, the
Sandiganbayan and, consequently, the Ombudsman, would have no
jurisdiction over him.
This last contention is easily dismissed. In the Court’s decision in Uy,
we held that "it is the prosecutor, not the Ombudsman, who has the
authority to file the corresponding information/s against petitioner in
the regional trial court. The Ombudsman exercises prosecutorial
powers only in cases cognizable by the Sandiganbayan."
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the
authority of the State and regular provincial and city
prosecutors under the Department of Justice to have control
over prosecution of cases falling within the jurisdiction of the
regular courts. The investigation and prosecutorial powers of
the Ombudsman relate to cases rightfully falling within the
jurisdiction of the Sandiganbayan under Section 15 (1) of
R.A. 6770 ("An Act Providing for the Functional and
Structural Organization of the Office of the Ombudsman, and
for other purposes") which vests upon the Ombudsman
"primary jurisdiction over cases cognizable by the
Sandiganbayan…" And this is further buttressed by Section
11 (4a) of R.A. 6770 which emphasizes that the Office of the
Special Prosecutor shall have the power to "conduct
preliminary investigation and prosecute criminal cases within
the jurisdiction of the Sandiganbayan." Thus, repeated
references to the Sandiganbayan’s jurisdiction clearly serve
to limit the Ombudsman’s and Special Prosecutor’s authority
to cases cognizable by the Sandiganbayan. [Emphasis in the
original.]
The power to investigate and to prosecute granted by law to
the Ombudsman is plenary and unqualified. It pertains to any
act or omission of any public officer or employee when such
act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between
cases cognizable by the Sandiganbayan and those
cognizable by regular courts. It has been held that the clause
"any illegal act or omission of any public official" is broad
enough to embrace any crime committed by a public officer
or employee.
The reference made by RA 6770 to cases cognizable by the
Sandiganbayan, particularly in Section 15(1) giving the
Ombudsman primary jurisdiction over cases cognizable by
the Sandiganbayan, and Section 11(4) granting the Special
Prosecutor the power to conduct preliminary investigation
and prosecute criminal cases within the jurisdiction of the
Sandiganbayan, should not be construed as confining the
scope of the investigatory and prosecutory power of the
Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary
jurisdiction over cases cognizable by the Sandiganbayan.
The law defines such primary jurisdiction as authorizing the
Ombudsman "to take over, at any stage, from any
investigatory agency of the government, the investigation of
such cases." The grant of this authority does not necessarily
imply the exclusion from its jurisdiction of cases involving
public officers and employees by other courts. The exercise
 by the Ombudsman of his primary jurisdiction over cases
cognizable by the Sandiganbayan is not incompatible with
the discharge of his duty to investigate and prosecute other
offenses committed by public officers and employees.
Indeed, it must be stressed that the powers granted by the
legislature to the Ombudsman are very broad and
encompass all kinds of malfeasance, misfeasance and non-
feasance committed by public officers and employees during
their tenure of office.
Moreover, the jurisdiction of the Office of the Ombudsman
should not be equated with the limited authority of the Special
Prosecutor under Section 11 of RA 6770. The Office of the
Special Prosecutor is merely a component of the Office of the
Ombudsman and may only act under the supervision and
control and upon authority of the Ombudsman. Its power to
conduct preliminary investigation and to prosecute is limited
to criminal cases within the jurisdiction of the Sandiganbayan.
Certainly, the lawmakers did not intend to confine the
investigatory and prosecutory power of the Ombudsman to
these types of cases. The Ombudsman is mandated by law
to act on all complaints against officers and employees of the
government and to enforce their administrative, civil and
criminal liability in every case where the evidence warrants.
To carry out this duty, the law allows him to utilize the
personnel of his office and/or designate any fiscal, state
prosecutor or lawyer in the government service to act as
special investigator or prosecutor to assist in the investigation
and prosecution of certain cases. Those designated or
deputized to assist him work under his supervision and
control. The law likewise allows him to direct the Special
Prosecutor to prosecute cases outside the Sandiganbayan’s
jurisdiction in accordance with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and
employees is one of the most important functions of the
Ombudsman. In passing RA 6770, the Congress deliberately
endowed the Ombudsman with such power to make him a
more active and effective agent of the people in ensuring
accountability in public office. A review of the development of
our Ombudsman law reveals this intent. [Emphasis in the
original.]
Having disposed of this contention, we proceed to the principal
grounds upon which petitioner relies. We first address the argument
that petitioner, as Chair of the NCC, was not a public officer.
The Constitution10 describes the Ombudsman and his Deputies as
"protectors of the people," who "shall act promptly on complaints filed
in any form or manner against public officials or employees of the
government, or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations." Among the
awesome powers, functions, and duties vested by the Constitution 11
upon the Office of the Ombudsman is to "[i]nvestigate… any act or
omission of any public official, employee, office or agency, when such
act or omission appears to be illegal, unjust, improper, or inefficient."
The foregoing constitutional provisions are substantially reproduced
in R.A. No. 6770, otherwise known as the "Ombudsman Act of 1989."
Sections 13 and 15(1) of said law respectively provide:
SEC. 13. Mandate. – The Ombudsman and his Deputies, as
protectors of the people shall act promptly on complaints file
in any form or manner against officers or employees of the
Government, or of any subdivision, agency or instrumentality
thereof, including government-owned or controlled
corporations, and enforce their administrative, civil and
criminal liability in every case where the evidence warrants in
order to promote efficient service by the Government to the
people.
SEC. 15. Powers, Functions and Duties. – The Office of the
Ombudsman shall have the following powers, functions and
duties:
(1) Investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or
employee, office or agency, when such act or omission
appears to be illegal unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of Government, the investigation of
such cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in
relation to Section 13, supra:
SEC 16. Applicability. – The provisions of this Act shall apply
to all kinds of malfeasance, misfeasance and non-feasance
that have been committed by any officer or employee as
mentioned in Section 13 hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any
malfeasance, misfeasance and non-feasance by a public officer or
employee of the government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled
corporations.12
Neither the Constitution nor the Ombudsman Act of 1989, however,
defines who public officers are. A definition of public officers cited in
jurisprudence13 is that provided by Mechem, a recognized authority
on the subject:
A public office is the right, authority and duty, created and
conferred by law, by which, for a given period, either fixed by
law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign
functions of the government, to be exercised by him for the
benefit of the public. The individual so invested is a public
officer.14
The characteristics of a public office, according to Mechem, include
the delegation of sovereign functions, its creation by law and not by
contract, an oath, salary, continuance of the position, scope of duties,
and the designation of the position as an office.15
Petitioner submits that some of these characteristics are not present
in the position of NCC Chair, namely: (1) the delegation of sovereign
functions; (2) salary, since he purportedly did not receive any
compensation; and (3) continuance, the tenure of the NCC being
temporary.
Mechem describes the delegation to the individual of some of the
sovereign functions of government as "[t]he most important
characteristic" in determining whether a position is a public office or
not.
The most important characteristic which distinguishes an
office from an employment or contract is that the creation and
conferring of an office involves a delegation to the individual
of some of the sovereign functions of government, to be
exercised by him for the benefit of the public; – that some
portion of the sovereignty of the country, either legislative,
executive or judicial, attaches, for the time being, to be
exercised for the public benefit. Unless the powers conferred
are of this nature, the individual is not a public officer. 16
Did E.O. 128 delegate the NCC with some of the sovereign functions
of government? Certainly, the law did not delegate upon the NCC
functions that can be described as legislative or judicial. May the
functions of the NCC then be described as executive?
We hold that the NCC performs executive functions. The executive
power "is generally defined as the power to enforce and administer
the laws. It is the power of carrying the laws into practical operation
and enforcing their due observance."17 The executive function,
therefore, concerns the implementation of the policies as set forth by
law.
The Constitution provides in Article XIV (Education, Science and
Technology, Arts, Culture, and Sports) thereof:
Sec. 15. Arts and letters shall enjoy the patronage of the
State. The State shall conserve, promote, and popularize the
nation’s historical and cultural heritage and resources, as well
as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of
the Committee for the National Centennial Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be
celebrated in 1998, and the centennial presents an important
vehicle for fostering nationhood and a strong sense of Filipino
identity;
Whereas, the centennial can effectively showcase Filipino
heritage and thereby strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may be
insured only through long-range planning and continuous
developmental programming;
Whereas, the active participation of the private sector in all
 areas of special expertise and capability, particularly in
communication and information dissemination, is necessary
for long-range planning and continuous developmental
programming;
Whereas, there is a need to create a body which shall initiate
and undertake the primary task of harnessing the
multisectoral components from the business, cultural, and
business sectors to serve as effective instruments from the
launching and overseeing of this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National
Centennial Celebrations in 1998, cited the "need to strengthen the
said Committee to ensure a more coordinated and synchronized
celebrations of the Philippine Centennial and wider participation from
the government and non-government or private organizations." It also
referred to the "need to rationalize the relevance of historical links
with other countries."
The NCC was precisely created to execute the foregoing policies and
objectives, to carry them into effect. Thus, the Commission was
vested with the following functions:
(a) To undertake the overall study, conceptualization,
formulation and implementation of programs and projects on
the utilization of culture, arts, literature and media as vehicles
for history, economic endeavors, and reinvigorating the spirit
of national unity and sense of accomplishment in every
Filipino in the context of the Centennial Celebrations. In this
regard, it shall include a Philippine National Exposition ’98
within Metro Manila, the original eight provinces, and Clark
Air Base as its major venues;
(b) To act as principal coordinator for all the activities related
to awareness and celebration of the Centennial;
(c) To serve as the clearing house for the preparation and
dissemination of all information about the plans and events
for the Centennial Celebrations;
(d) To constitute working groups which shall undertake the
implementation of the programs and projects;
(e) To prioritize the refurbishment of historical sites and
structures nationwide. In this regard, the Commission shall
formulate schemes (e.g. lease-maintained-and-transfer,
build-operate-transfer, and similar arrangements) to ensure
the preservation and maintenance of the historical sites and
structures;
(f) To call upon any government agency or instrumentality
and corporation, and to invite private individuals and
organizations to assist it in the performance of its tasks; and,
(g) Submit regular reports to the President on the plans,
programs, projects, activities as well as the status of the
preparations for the Celebration.18
It bears noting the President, upon whom the executive power is
vested,19 created the NCC by executive order. Book III (Office of the
President), Chapter 2 (Ordinance Power), Section 2 describes the
nature of executive orders:
SEC. 2. Executive Orders. – Acts of the President providing
for rules of a general or permanent character in
implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
[Underscoring ours.]
Furthermore, the NCC was not without a role in the country’s
economic development, especially in Central Luzon. Petitioner
himself admitted as much in the oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former
President Ramos, don’t you agree that the task of the
centennial commission was also to focus on the long
term over all socio economic development of the
zone and Central Luzon by attracting investors in the
area because of the eruption of Mt. Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
 I am glad Your Honor touched on that because that
is something I wanted to touch on by lack of material
time I could not but that is a very important point.
When I was made Chairman I wanted the Expo to be
in Batangas because I am a Batangeño but
President Ramos said Mr. Vice President the Central
Luzon is suffering, suffering because of the eruption
of Mt. Pinatubo let us try to catalize [sic] economic
recovery in that area by putting this Expo in Clark
Field and so it was done I agreed and Your Honor if I
may also mention we wanted to generate
employment aside from attracting business
investments and employment. And the Estrada
administration decided to junk this project there 48,
40 thousand people who lost job, they were
employed in Expo. And our target was to provide 75
thousand jobs. It would have really calibrated,
accelerated the development of Central Luzon. Now,
I think they are going back to that because they had
the airport and there are plan to revive the Expo site
into key park which was the original plan.
There can hardly be any dispute that the promotion of
industrialization and full employment is a fundamental state policy. 20
Petitioner invokes the ruling of this Court in Torio vs. Fontanilla21 that
the holding by a municipality of a town fiesta is a proprietary rather
than a governmental function. Petitioner argues that the "holding of a
nationwide celebration which marked the nation’s 100th birthday may
be likened to a national fiesta which involved only the exercise of the
national government’s proprietary function."22 In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the
Revised Administrative Code] simply gives authority to the
municipality to [celebrate] a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta even if
the purpose is to commemorate a religious or historical event
of the town is in essence an act for the special benefit of the
community and not for the general welfare of the public
performed in pursuance of a policy of the state. The mere
fact that the celebration, as claimed, was not to secure profit
or gain but merely to provide entertainment to the town
inhabitants is not a conclusive test. For instance, the
maintenance of parks is not a source of income for the town,
nonetheless it is [a] private undertaking as distinguished from
the maintenance of public schools, jails, and the like which
are for public service.
As stated earlier, there can be no hard and fast rule for
purposes of determining the true nature of an undertaking or
function of a municipality; the surrounding circumstances of a
particular case are to be considered and will be decisive. The
basic element, however beneficial to the public the
undertaking may be, is that it is government in essence,
otherwise, the function becomes private or propriety in
character. Easily, no governmental or public policy of the
state is involved in the celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing
doctrine. Note that the Court cautioned that "there can be no hard
and fast rule for purposes of determining the true nature of an
undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be
decisive." Thus, in footnote 15 of Torio, the Court, citing an American
case, illustrated how the "surrounding circumstances plus the
political, social, and cultural backgrounds" could produce a
conclusion different from that in Torio:
We came across an interesting case which shows that
surrounding circumstances plus the political, social, and
cultural backgrounds may have a decisive bearing on this
question. The case of Pope v. City of New Haven, et al. was
an action to recover damages for personal injuries caused
during a Fourth of July fireworks display resulting in the death
of a bystander alleged to have been caused by defendants’
negligence. The defendants demurred to the complaint
invoking the defense that the city was engaged in the
performance of a public governmental duty from which it
received no pecuniary benefit and for negligence in the
performance of which no statutory liability is imposed. This
demurrer was sustained by the Superior Court of New Haven
Country. Plaintiff sought to amend his complaint to allege that
the celebration was for the corporate advantage of the city.
This was denied. In affirming the order, the Supreme Court of
Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the
negligent performance of purely public governmental duties,
 unless made liable by statute….
A municipality corporation, which under permissive authority
of its charter or of statute, conducted a public Fourth of July
celebration, including a display of fireworks, and sent up a
bomb intended to explode in the air, but which failed to
explode until it reached the ground, and then killed a
spectator, was engaged in the performance of a
governmental duty. (99 A.R. 51)
This decision was concurred in by three Judges while two
dissented.
At any rate the rationale of the Majority Opinion is evident
from [this] excerpt:
"July 4th, when that date falls upon Sunday, July 5th, is made
a public holiday, called Independence Day, by our statutes.
All or nearly all of the other states have similar statutes.
While there is no United States statute making a similar
provision, the different departments of the government
recognize, and have recognized since the government was
established, July 4th as a national holiday. Throughout the
country it has been recognized and celebrated as such.
These celebrations, calculated to entertain and instruct the
people generally and to arouse and stimulate patriotic
sentiments and love of country, frequently take the form of
literary exercises consisting of patriotic speeches and the
reading of the Constitution, accompanied by a musical
program including patriotic air sometimes preceded by the
firing of cannon and followed by fireworks. That such
celebrations are of advantage to the general public and their
promotion a proper subject of legislation can hardly be
questioned. x x x"
Surely, a town fiesta cannot compare to the National Centennial
Celebrations. The Centennial Celebrations was meant to
commemorate the birth of our nation after centuries of struggle
against our former colonial master, to memorialize the liberation of
our people from oppression by a foreign power. 1998 marked 100
years of independence and sovereignty as one united nation. The
Celebrations was an occasion to reflect upon our history and
reinvigorate our patriotism. As A.O. 223 put it, it was a "vehicle for
fostering nationhood and a strong sense of Filipino identity," an
opportunity to "showcase Filipino heritage and thereby strengthen
Filipino values." The significance of the Celebrations could not have
been lost on petitioner, who remarked during the hearing:
Oh, yes, certainly the State is interested in the unity of the
people, we wanted to rekindle the love for freedom, love for
country, that is the over-all goal that has to make everybody
feel proud that he is a Filipino, proud of our history, proud of
what our forefather did in their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a
public office, and petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his
tenure is of little consequence. A salary is a usual but not a
necessary criterion for determining the nature of the position. It is not
conclusive. The salary is a mere incident and forms no part of the
office. Where a salary or fees is annexed, the office is provided for it
is a naked or honorary office, and is supposed to be accepted merely
for the public good.23 Hence, the office of petitioner as NCC Chair
may be characterized as an honorary office, as opposed to a
lucrative office or an office of profit, i.e., one to which salary,
compensation or fees are attached.24 But it is a public office,
nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128
as an "ad-hoc body" make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and
duration, and certainly a position which is merely temporary
and local cannot ordinarily be considered an office. "But,"
says Chief Justice Marshall, "if a duty be a continuing one,
which is defined by rules prescribed by the government and
not by contract, which an individual is appointed by
government to perform, who enters on the duties pertaining
to his station without any contract defining them, if those
duties continue though the person be changed, -- it seems
very difficult to distinguish such a charge or employment from
an office of the person who performs the duties from an
officer."
At the same time, however, this element of continuance can
not be considered as indispensable, for, if the other elements
are present "it can make no difference," says Pearson, C.J.,
 "whether there be but one act or a series of acts to be done,
-- whether the office expires as soon as the one act is done,
or is to be held for years or during good behavior."25
Our conclusion that petitioner is a public officer finds support in In Re
Corliss.26 There the Supreme Court of Rhode Island ruled that the
office of Commissioner of the United States Centennial Commission
is an "office of trust" as to disqualify its holder as elector of the United
States President and Vice-President. (Under Article II of the United
States Constitution, a person holding an office of trust or profit under
the United States is disqualified from being appointed an elector.)
x x x. We think a Commissioner of the United States
Centennial Commission holds an office of trust under the
United States, and that he is therefore disqualified for the
office of elector of President and Vice-President of the United
States.
The commission was created under a statute of the United
States approved March 3, 1871. That statute provides for the
holding of an exhibition of American and foreign arts,
products, and manufactures, "under the auspices of the
government of the United States," and for the constitution of
a commission, to consist of more than one delegate from
each State and from each Territory of the United States,
"whose functions shall continue until close of the exhibition,"
and "whose duty it shall be to prepare and superintend the
execution of the plan for holding the exhibition." Under the
statute the commissioners are appointed by the President of
the United States, on the nomination of the governor of the
States and Territories respectively. Various duties were
imposed upon the commission, and under the statute
provision was to be made for it to have exclusive control of
the exhibit before the President should announce, by
proclamation, the date and place of opening and holding the
exhibition. By an act of Congress approved June 1st, 1872,
the duties and functions of the commission were further
increased and defined. That act created a corporation, called
"The Centennial Board of Finance," to cooperate with the
commission and to raise and disburse the funds. It was to be
organized under the direction of the commission. The
seventh section of the act provides "that the grounds for
exhibition shall be prepared and the buildings erected by the
corporation, in accordance with plans which shall have been
adopted by the United States Centennial Commission; and
the rules and regulations of said corporation, governing rates
for entrance and admission fees, or otherwise affecting the
rights, privileges, or interests of the exhibitors, or of the
public, shall be fixed and established by the United States
Centennial Commission; and no grant conferring rights or
privileges of any description connected with said grounds or
buildings, or relating to said exhibition or celebration, shall be
made without the consent of the United States Centennial
Commission, and said commission shall have power to
control, change, or revoke all such grants, and shall appoint
all judges and examiners and award all premiums." The tenth
section of the act provides that "it shall be the duty of the
United States Centennial Commission to supervise the
closing up of the affairs of said corporation, to audit its
accounts, and submit in a report to the President of the
United States the financial results of the centennial
exhibition."
It is apparent from this statement, which is but partial, that the
duties and functions of the commission were various,
delicate, and important; that they could be successfully
performed only by men of large experience and knowledge of
affairs; and that they were not merely subordinate and
provisional, but in the highest degree authoritative,
discretionary, and final in their character. We think that
persons performing such duties and exercising such
functions, in pursuance of statutory direction and authority,
are not to be regarded as mere employees, agents, or
committee men, but that they are, properly speaking, officers,
and that the places which they hold are offices. It appears,
moreover, that they were originally regarded as officers by
Congress; for the act under which they were appointed
declares, section 7, that "no compensation for services shall
be paid to the commissioners or other officers, provided for in
this act, from the treasury of the United States." The only
other officers provided for were the "alternates" appointed to
serve as commissioners when the commissioners were
unable to attend.
Having arrived at the conclusion that the NCC performs executive
functions and is, therefore, a public office, we need no longer delve at
length on the issue of whether Expocorp is a private or a public
corporation. Even assuming that Expocorp is a private corporation,
petitioner’s position as Chief Executive Officer (CEO) of Expocorp
arose from his Chairmanship of the NCC. Consequently, his acts or
omissions as CEO of Expocorp must be viewed in the light of his
powers and functions as NCC Chair.27
Finally, it is contended that since petitioner supposedly did not
receive any compensation for his services as NCC or Expocorp
Chair, he is not a public officer as defined in Republic Act No. 3019
(The Anti-Graft and Corrupt Practices Act) and is, therefore, beyond
the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e)
of said law, which reads:
SEC. 3. Corrupt practices of public officers. – In addition to
acts or omissions of public officers already penalized by
existing law, the following shall constitute corrupt practices of
any public officer and are hereby declared to be unlawful:
xxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence.
This provision shall apply to officers and employees of offices
or government corporations charged with the grant of
licenses or permits or other concessions.
A "public officer," under R.A. No. 3019, is defined by Section 2 of said
law as follows:
SEC. 2. Definition of terms. – As used in this Act, the term –
xxx
(b) "Public officer" includes elective and appointive officials
and employees, permanent or temporary, whether in the
classified or unclassified or exemption service receiving
compensation, even nominal, from the government as
defined in the preceding paragraph. [Emphasis supplied.]
It is clear from Section 2 (b), above, that the definition of a "public
officer" is expressly limited to the application of R.A. No. 3019. Said
definition does not apply for purposes of determining the
Ombudsman’s jurisdiction, as defined by the Constitution and the
Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under
the Anti-Graft and Corrupt Practices Act involves the appreciation of
evidence and interpretation of law, matters that are best resolved at
trial.
To illustrate, the use of the term "includes" in Section 2 (b) indicates
that the definition is not restrictive.28 The Anti-Graft and Corrupt
Practices Act is just one of several laws that define "public officers."
Article 203 of the Revised Penal Code, for example, provides that a
public officer is:
x x x any person who, by direct provision of law, popular
election or appointment by competent authority, takes part in
the performance of public functions in the Government of
Philippines, or performs in said Government or in any of its
branches public duties as an employee, agent or subordinate
official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative
Code of 1987,29 on the other hand, states:
Officer – as distinguished from "clerk" or "employee", refers
to a person whose duties not being of a clerical or manual
nature, involves the exercise of discretion in the performance
of the functions of the government. When used with
reference to a person having authority to do a particular act
or perform a particular person in the exercise of
governmental power, "officer" includes any government
employee, agent or body having authority to do the act or
exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The
Code of Conduct and Ethical Standards for Public Officials and
Employees), one may be considered a "public official" whether or not
one receives compensation, thus:
"Public Officials" include elective and appointive officials and
employees, permanent or temporary, whether in the career or
non-career service including military and police personnel,
whether or not they receive compensation, regardless of
 amount.
Which of these definitions should apply, if at all?
Assuming that the definition of public officer in R.A. No. 3019 is
exclusive, the term "compensation," which is not defined by said law,
has many meanings.
Under particular circumstances, "compensation" has been
held to include allowance for personal expenses,
commissions, expenses, fees, an honorarium, mileage or
traveling expenses, payments for services, restitution or a
balancing of accounts, salary, and wages.30
How then is "compensation," as the term is used in Section 2 (b) of
R.A. No. 3019, to be interpreted?
Did petitioner receive any compensation at all as NCC Chair?
Granting that petitioner did not receive any salary, the records do not
reveal if he received any allowance, fee, honorarium, or some other
form of compensation. Notably, under the by-laws of Expocorp, the
CEO is entitled to per diems and compensation.31 Would such fact
bear any significance?
Obviously, this proceeding is not the proper forum to settle these
issues lest we preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction
issued in the Court’s Resolution dated September 24, 2001 is hereby
LIFTED.
SO ORDERED.
Puno, and Ynares-Santiago, JJ., concur.
Davide, Jr., C.J., (Chairman), no part due to close relation to a party.
Footnotes
1
A.O. 223, Section 1. The same section provided for the
Committee’s composition as follows:
x x x. The Committee shall be composed of six (6)
representatives from the Presidential Commission for
Culture and the Arts (PCCA), and five (5)
representatives from the Philippine Centennial
Foundation, Inc. (PCFI). They shall be appointed by
the President upon their nomination by their
respective groups.
The Committee members shall elect among
themselves the Chairman and Vice-Chairman, and
such other officers as they may deem necessary.
The Committee was also granted the following duties
and powers:
1. To undertake the overall study, formulation and
implementation of programs and projects on the
utilization of culture, arts, and media as vehicles for
value education in the context of the Centennial
Celebration;
2. To act as principal coordinator for all the activities
related to awareness and celebration of the
centennial;
3. To constitute sub-committees and working groups
which shall undertake the implementation of the
program and projects; and
4. To call upon the assistance of any government
agency or instrumentality and corporation, and to
invite private individuals and organizations to assist it
in the performance of its tasks. (Id., at Section 2.)
2
Other members of the Commission were the Secretaries of
Education, Culture and Sports, National Defense, Interior and
Local Government, Tourism, Trade and Industry, Public
Works and Highways, Transportation and Communications,
and Budget and Management, the Press Secretary, two (2)
representatives each from the Senate and the House of
Representatives, two (2) representatives from the Judiciary,
the Executive Director of the National Historical Institute,
three (3) representatives from the National Commission for
Culture and Arts, three (3) representatives from the Philippine
Centennial Foundation, Inc., and other members from the
government and the private sectors, "as may be designated
later." (E.O. No. 128, Section 1.)
3
Id., at Section 5.
4
The purposes of the corporation were set forth in Article 2 of
the Articles of Incorporation, thus:
PRIMARY PURPOSE
To set up and establish the Philippine Centennial
International Exposition 1998 (EXPO ’98), a project
of the National Centennial Commission envisioned
and mandated under Executive Order No. 128,
series of 1993, in the Clark Special Economic Zone
(CSEZ) within the Provinces of Pampanga and
Tarlac, Philippines as created, defined and
delineated under Proclamation No. 163, series 1993,
of the President of the Philippines and furtherance of
said purpose;
1. To operate, administer, manage, implement, and
develop EXPO ’98 conformably to and in accordance
with the Detailed Feasibility study and Master Plan
for said Exposition prepared by
DOUGLAS/GALLAGHER, INC. and approved by the
President of the Philippines;
2. To exercise oversight functions and overall
jurisdiction over the operations of EXPO ’98 as well
as manage and oversee all plans, programs, and
activities related to the implementation and operation
of said Exposition;
3. To regulate the establishment, operation, and
maintenance of utilities, services, and infrastructure
works in all the site components of EXPO ’98 and its
support facilities;
4. To oversee the preparations for the
implementation of the participation of countries,
groups, organizations, and entities at EXPO ’98;
5. To establish linkages with participating countries
and coordinate their programs and activities relevant
to the theme of EXPO ’98;
6. To provide and prescribe the guidelines for the
design and fabrication of the pavilions of participating
countries that played a significant role in Philippine
historical development and of other participating
groups, organizations, and entities which would be
reflective of the following objectives of EXPO ’98 --
a) showcase the national vision of the
Philippines, highlighted by a rich history and
culture, and its traditional heritage and
diverse cultural influences;
b) express eloquently the Filipinism
sentiment of the Philippine Centennial;
c) strengthen cultural and historical linkages
between Philippines and participating
countries;
d) create an image of the Philippines as a
country with rich trade and tourism
potentials; and
e) project the Filipino character and
strengthen the sense of national pride and
patriotism among the Filipino people.
7. To conceive and devise varied promotional
strategies towards creating awareness and
appreciation of EXPO ’98 as the centerpiece of the
national celebrations in 1998 of the centennial of the
declaration of Philippine Independence and beyond
that as a permanent site for the Filipino people to
honor their rich heritage;
8. To encourage and invite the active and meaningful
participation of the private sector in managing and
overseeing EXPO ’98; and
9. To forge strategic partnerships and joint ventures
with local and international investors and developers
in the development, maintenance, operation, and
management of EXPO ’98 on a turn-key basis.
SECONDARY PURPOSES
(1) To purchase, acquire, own, lease, sell and
convey real properties such as lands, buildings,
factories and warehouses and machineries,
equipment and other personal properties as may be
necessary or incidental to the conduct of the
corporate business, and to pay in cash, shares of its
capital stock, debentures and other evidences of
indebtedness, or other securities, as may be deemed
expedient, for any business or property acquired by
the corporation.
(2) To borrow or raise money necessary to meet the
financial requirements of its business by the issuance
of bonds, promissory notes and other evidences of
indebtedness, and to secure the repayment thereof
by mortgage, pledge, deed of trust or lien upon the
properties of the corporation or to issue pursuant to
law shares of its capital stock, debentures and other
evidences of indebtedness in payment for properties
acquired by the corporation or for money borrowed in
the prosecution of its lawful business;
(3) To invest and deal with the money and properties
of the corporation in such manner as may from time
to time be considered wise or expedient for the
advancement of its interests and to sell, dispose of or
transfer the business, properties and goodwill of the
corporation or any part thereof for such consideration
and under such terms as it shall see fit to accept;
(4) To aid in any manner any corporation,
association, or trust estate, domestic or foreign, or
any firm or individual, any shares of stock in which or
any bonds, debentures, notes, securities, evidences
of indebtedness, contracts, or obligations of which
are held by or for this corporation, directly or
indirectly or through other corporations or otherwise;
(5) To enter into any lawful arrangement for sharing
profits, union of interest, unitization or farmout
agreement, reciprocal concession, or cooperation,
with any corporation, association, partnership,
syndicate, entity, person or governmental, municipal
or public authority, domestic or foreign, in the
carrying on of any business or transaction deemed
necessary, convenient or incidental to carrying out
any of the purposes of this corporation;
(6) To acquire or obtain from any government or
authority, national, provincial, municipal or otherwise,
or a corporation, company or partnership or person,
such charter, contracts, franchise, privileges,
exemption, licenses and concessions as may be
conducive to any of the objects of the corporation;
(7) To establish and operate one or more branch
offices of agencies and to carry on any or all of its
operations and business without any restrictions as
to place or amount including the right to hold,
purchase or otherwise acquire, lease, mortgage,
pledge and convey or otherwise deal in with real and
personal property anywhere within the Philippines;
(8) To conduct and transact any and all lawful
business, and to do or cause to be done any one or
more of the acts and things herein set forth as its
purposes, within or without the Philippines, and in
any and all foreign countries, and to do everything
necessary, desirable or incidental to the
accomplishment of the purposes or the exercise of
any one or more of the powers herein enumerated,
or which shall at any time appear conducive to or
expedient for the protection or benefit of this
corporation.
5
Rollo, p. 10.
6
Id., at 134-135.
7
Id., at 15.
8 19
Id., at 296-297. CONSTITUTION, ARTICLE VII, SECTION 1.

9 20
312 SCRA 77 (1999). Article XII (National Economy and Patrimony) of the
Constitution provides:
10
Art. XI, Sec. 12.
Section 1. x x x.
11
Art. XI, Sec. 13 (1).
The State shall promote industrialization and full
12
Section 22 extends these investigatory powers, under employment based on sound agricultural
certain conditions, to private persons: development and agrarian reform, through industries
that make full and efficient use of human and natural
resources, and which are competitive in both
SEC. 22. Investigatory Power. – The Office of the
domestic and foreign markets. x x x.
Ombudsman shall have the power to investigate any
serious misconduct in office allegedly committed by
officials removable by impeachment, for the purpose In the pursuit of these goals, all sectors of the
of filing a verified complaint for impeachment or over economy and all regions of the country shall be given
Members of Congress, and the Judiciary. optimum opportunity to develop. x x x.

21
In all cases of conspiracy between an officer or 85 SCRA 599 (1978).
employee of the government and a private person,
22
the Ombudsman and his Deputies shall have Rollo, p. 466.
jurisdiction to include such private person as the
evidence may warrant. The officer or employee and 23
Id, at §§7, 15. See also Triste vs. Leyte State College
the private person shall be tried jointly and shall be Board of Trustees, 192 SCRA 326 (1990)
subject to the same penalties and liabilities.
24
Id., at §13.
13
E.g., Fernandez vs. Ledesma, 7 SCRA 620 (1963); Aparri
vs. Court of Appeals, 127 SCRA 231 (1984). 25
Id., at § 8. Emphasis supplied.
14
F.R. MECHEM, A TREATISE ON THE LAW OF PUBLIC 26
23 Am Rep. 538 (1876).
OFFICES AND OFFICERS, §1.
27
15 See Yasay vs. Desierto, 300 SCRA 494 (1998).
Id., at §§ 4-10. See also 63C Am Jur 2d, Public Officers
and Employees §1. 28
Preclaro vs. Sandiganbayan, 247 SCRA 454 (1995).
16
Id., at §4. 29
Executive Order No. 292.
17
Ople vs. Torres, 293 SCRA 141 (1998). 30
15 C.J.S. Compensation, p. 654.
18
Id., at Sec. 2. 31
Rollo, p. 470.

The Lawphil Project - Arellano Law Foundation

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
G.R. No. 116418 March 7, 1995
SALVADOR C. FERNANDEZ and ANICIA M. DE LIMA, petitioners,
vs.
HON. PATRICIA A. STO. TOMAS, Chairman, and HON. RAMON B.
ERENETA, Commissioner, Civil Service Commission, respondents.
FELICIANO, J.:
In this Petition for Certiorari, Prohibition and Mandamus with Prayer for a
Temporary Restraining Order, petitioners Salvador C. Fernandez and Anicia
M. de Lima assail the validity of Resolution No. 94-3710 of the Civil Service
Commission ("Commission") and the authority of the Commission to issue the
same.
Petitioner Fernandez was serving as Director of the Office of Personnel
Inspection and Audit ("OPIA") while petitioner de Lima was serving as
Director of the Office of the Personnel Relations ("OPR"), both at the Central
Office of the Civil Service Commission in Quezon City, Metropolitan Manila.
While petitioners were so serving, Resolution No. 94-3710 signed by public
respondents Patricia A.. Sto. Tomas and Ramon Ereneta, Jr., Chairman and
Commissioner, respectively, of the Commission, was issued on 7 June 1994.
1
Resolution No. 94-3710 needs to be quoted in full:
RESOLUTION NO. 94-3710
WHEREAS, Section 17 of Book V of Executive Order 292
provides that ". . . as an independent constitutional body, the
Commission may effect changes in the organization as the
need arises;"
WHEREAS, the Commission finds it imperative to effect
changes in the organization to streamline its operations and
improve delivery of public service;
WHEREAS, the Commission finds it necessary to
immediately effect changes in the organization of the Central
Offices in view of the need to implement new programs in
lieu of those functions which were transferred to the Regional
Offices;
WHEREFORE, foregoing premises considered, the
Commission hereby RESOLVES to effect the following
changes in its organization, specifically in the Central Offices:
1. The OCSS [Office of Career Systems and Standards],
OPIA [Office of Personnel Inspection and Audit] and OPR
[Office of Personnel Relations] are merged to form the
Research and Development Office (RDO).
2. The Office for Human Resource Development (OHRD) is
renamed Human Resource Development Office (HRDO).
3. The following functions and the personnel assigned to the
unit performing said functions are hereby transferred to
HRDO:
a. Administration of the Honor and Awards
program under OCSS;
b. Registration and Accreditation of Unions
under OPR; and
c. Accreditation of Agencies to take final
action on appointments under OPIA.
4. The Office for Central Personnel Records (OCPR) is
renamed Management Information Office (MIO).
5. The Information technology functions of OPM and the
personnel assigned to the unit are transferred to MIO.
6. The following functions of OPM and the personnel
assigned to the unit performing said functions are hereby
transferred to the Office of the Executive Director:
a. Financial Audit and Evaluation;
b. Internal Management and Improvement;
 c. Research and Statistics; and and praying that public respondents be restrained from enforcing these Office
Orders. The Court, in a Resolution dated 27 September 1994, granted this
d. Planning and Programming. Motion and issued the Temporary Restraining Order prayed for by petitioners.

7. The library service and its personnel under OCPR are
transferred to the Central Administrative Office.
8. The budget allocated for the various functions shall be
transferred to the Offices where the functions are transferred.
Records, fixtures and equipment that go with the functions
shall be moved to where the functions are transferred.
The Commission filed its own Comment, dated 12 September 1994, on the
Petition and then moved to lift the Temporary Restraining Order. The Office of
the Solicitor General filed a separate Comment dated 28 November 1994,
defending the validity of Resolution No. 94-3710 and urging dismissal of the
Petition. Petitioners filed separate Replies to these Comments. The
Commission in turn filed a Rejoinder (denominated "Comment [on] the
Reply").

The principal issues raised in this Petition are the following:

Annex A contains the manning list for all the offices, except
the OCES.
(1) Whether or not the Civil Service Commission had legal
authority to issue Resolution No. 94-3710 to the extent it
The changes in the organization and in operations shall take
merged the OCSS [Office of Career Systems and Standards],
place before end of July 1994.
the OPIA [Office of Personnel Inspection and Audit] and the
OPR [Office of Personnel Relations], to form the RDO
Done in Quezon City, July 07, 1994. [Research and Development Office]; and

(Signed) (2) Whether or not Resolution No. 94-3710 violated

Patricia A. Sto. Tomas petitioners' constitutional right to security of tenure.
Chairman
I.
(Signed) Did not participate
Ramon P. Ereneta, Jr., Thelma P. Gaminde
The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25
Commissioner Commissioner
July 1987) sets out, in Book V, Title I, Subtitle A, Chapter 3, the internal
structure and organization of the Commission in the following terms:
Attested by:
(Signed)
Sec. 16. Offices in the Commission — The Commission shall
Carmencita Giselle B. Dayson
have the following offices:
Board Secretary V 2

(1) The Office of the Executive Director — . . .

During the general assembly of officers and employees of the Commission
held in the morning of 28 July 1994, Chairman Sto. Tomas, when apprised of
objections of petitioners, expressed the determination of the Commission to (2) The Merit System Protection Board — . . .
implement Resolution No. 94-3710 unless restrained by higher authority.
(3) The Office of Legal Affairs — . . .
Petitioners then instituted this Petition. In a Resolution dated 23 August 1994,
the Court required public respondents to file a Comment on the Petition. On (4) The Office of Planning and Management — . . .
21 September 1994, petitioners filed an Urgent Motion for Issuance of a
Temporary Restraining Order, alleging that petitioners had received Office (5) The Central Administrative Office — . . .
Orders from the Commission assigning petitioner Fernandez to Region V at
Legaspi City and petitioner de Lima to Region III in San Fernando, Pampanga (6) The Office of Central Personnel Records — . . .
 (7) The Office of Position Classification and
Compensation — . . .
(8) The Office of Recruitment, Examination and
Placement — . . .
(9) The Office of Career Systems and Standards shall
provide leadership and assistance in the formulation and
evaluation of personnel systems and standards relative to
performance appraisal, merit promotion and employee
incentive benefits and awards.
(10) The Office of Human Resource Development — . . .
(11) The Office of Personnel Inspection and Audit shall
develop policies, standards, rules and regulations for the
effective conduct of inspection and audit of personnel and
personnel management programs and the exercise of
delegated authority; provide technical and advisory services
to Civil Service Regional Offices and government agencies in
the implementation of their personnel programs and
evaluation systems.
(12) The Office of Personnel Relations shall provide
leadership and assistance in the development and
implementation of policies, standards, rules and regulations
governing corporate officials and employees in the areas of
recruitment, examination, placement, career development,
merit and awards systems, position classification and
compensation, performance appraisal, employee welfare and
benefits, discipline and other aspects of personnel
management on the basis of comparable industry practices.
(13) The Office of the Corporate Affairs — . . .
(14) The Office of Retirement Administration — . . .
(15) The Regional and Field Offices. — . . . (Emphases in the
original)
Immediately after the foregoing listing of offices of the Commission and their
respective functions, the 1987 Revised Administrative Code goes on to
provide as follows:
Sec. 17. Organizational Structure. — Each office of the
Commission shall be headed by a Director with at least one
(1) Assistant Director, and may have such divisions as are
necessary to carry out their respective functions. As an
independent constitutional body, the Commission may effect
chances in the organization as the need arises.
xxx xxx xxx 3
(Emphasis supplied)
Examination of the foregoing statutory provisions reveals that the OCSS,
OPIA and OPR, and as well each of the other Offices listed in Section 16
above, consist of aggregations of Divisions, each of which Divisions is in turn
a grouping of Sections. Each Section, Division and Office comprises a group
of positions within the agency called the Civil Service Commission, each
group being entrusted with a more or less definable function or functions.
These functions are related to one another, each of them being embraced by
a common or general subject matter. Clearly, each Office is an internal
department or organizational unit within the Commission and that accordingly,
the OCSS, OPIA and OPR, as well as all the other Offices within the
Commission constitute administrative subdivisions of the CSC. Put a little
differently, these offices relate to the internal structure of the Commission.
What did Resolution No. 94-3710 of the Commission do? Examination of
Resolution No. 94-3710 shows that thereby the Commission re-arranged
some of the administrative units (i.e., Offices) within the Commission and,
among other things, merged three (3) of them (OCSS, OPIA and OPR) to
form a new grouping called the "Research and Development Office (RDO)."
The same Resolution renamed some of the Offices of the Commission, e.g.,
the Office for Human Resource Development (OHRD) was renamed Human
Resource Development Office (HRDO); the Office for Central Personnel
Records (OCPR) was renamed Management Information Office (MIO). The
Commission also re-allocated certain functions moving some functions from
one Office to another; e.g., the information technology function of OPM
(Office of Planning and Management) was transferred to the newly named
Management Information Office (MIO). This re-allocation or re-assignment of
some functions carried with it the transfer of the budget earmarked for such
function to the Office where the function was transferred. Moreover, the
personnel, records, fixtures and equipment that were devoted to the carrying
out of such functions were moved to the Offices to where the functions were
transferred.
The objectives sought by the Commission in enacting Resolution No. 94-3710
were described in that Resolution in broad terms as "effect[ing] changes in
the organization to streamline [the Commission's] operations and improve
delivery of service." These changes in internal organization were rendered
necessary by, on the one hand, the decentralization and devolution of the
Commission's functions effected by the creation of fourteen (14) Regional
Offices and ninety-five (95) Field Offices of the Commission throughout the
country, to the end that the Commission and its staff may be brought closer
physically to the government employees that they are mandated to serve. In
the past, its functions had been centralized in the Head Office of the
Commission in Metropolitan Manila and Civil Service employees all over the
country were compelled to come to Manila for the carrying out of personnel
transactions. Upon the other hand, the dispersal of the functions of the
Commission to the Regional Offices and the Field Offices attached to various
governmental agencies throughout the country makes possible the
implementation of new programs of the Commission at its Central Office in
Metropolitan Manila.
The Commission's Office Order assigning petitioner de Lima to the CSC
Regional Office No. 3 was precipitated by the incumbent Regional Director
filing an application for retirement, thus generating a need to find a
replacement for him. Petitioner de Lima was being assigned to that Regional
Office while the incumbent Regional Director was still there to facilitate her
take over of the duties and functions of the incumbent Director. Petitioner de
Lima's prior experience as a labor lawyer was also a factor in her assignment
to Regional Office No. 3 where public sector unions have been very active.
Petitioner Fernandez's assignment to the CSC Regional Office No. 5 had,
upon the other hand, been necessitated by the fact that the then incumbent
Director in Region V was under investigation and needed to be transferred
immediately to the Central Office. Petitioner Fernandez was deemed the most
likely designee for Director of Regional Office No. 5 considering that the
functions previously assigned to him had been substantially devolved to the
Regional Offices such that his reassignment to a Regional Office would result
in the least disruption of the operations of the Central Office. 4
It thus appears to the Court that the Commission was moved by quite
legitimate considerations of administrative efficiency and convenience in
promulgating and implementing its Resolution No. 94-3710 and in assigning
petitioner Salvador C. Fernandez to the Regional Office of the Commission in
Region V in Legaspi City and petitioner Anicia M. de Lima to the
Commission's Regional Office in Region III in San Fernando, Pampanga. It is
also clear to
the Court that the changes introduced and formalized through Resolution No.
94-3710 — re-naming of existing Offices; re-arrangement of the groupings of
Divisions and Sections composing particular Offices; re-allocation of existing
functions (and related personnel; budget, etc.) among the re-arranged Offices
— are precisely the kind of internal changes which are referred to in Section
17 (Book V, Title I, Subtitle A, Chapter 3) of the 1987 Revised Administrative
Code), quoted above, as "chances in the organization" of the Commission.
Petitioners argue that Resolution No. 94-3710 effected the "abolition" of
public offices, something which may be done only by the same legislative
authority which had created those public offices in the first place.
The Court is unable, in the circumstances of this case, to accept this
argument. The term "public office" is frequently used to refer to the right,
authority and duty, created and conferred by law, by which, for a given period
either fixed by law or enduring at the pleasure of the creating power, an
individual is invested with some portion of the sovereign functions of
government, to be exercised by that individual for the benefit of the public. 5
We consider that Resolution No. 94-3710 has not abolished any public office
as that term is used in the law of public officers. 6 It is essential to note that
none of the "changes in organization" introduced by Resolution No. 94-3710
carried with it or necessarily involved the termination of the relationship of
public employment between the Commission and any of its officers and
employees. We find it very difficult to suppose that the 1987 Revised
Administrative Code having mentioned fourteen (14) different "Offices" of the
Civil Service Commission, meant to freeze those Offices and to cast in
concrete, as it were, the internal organization of the commission until it might
please Congress to change such internal organization regardless of the ever
changing needs of the Civil Service as a whole. To the contrary, the
legislative authority had expressly authorized the Commission to carry out
"changes in the organization," as the need [for such changes] arises." 7
Assuming, for purposes of argument merely, that legislative authority was
necessary to carry out the kinds off changes contemplated in Resolution No.
94-3710 (and the Court is not saying that such authority is necessary), such
legislative authority was validly delegated to the Commission by Section 17
earlier quoted. The legislative standards to be observed and respected in the
exercise of such delegated authority are set out not only in Section 17 itself
(i.e., "as the need arises"), but also in the Declaration of Policies found in
Book V, Title I, Subtitle A, Section 1 of the 1987 Revised Administrative Code
which required the Civil Service Commission
as the central personnel agency of the Government [to]
establish a
career service, adopt measures to promote — efficiency —
[and] responsiveness . . . in the civil service . . . and that
personnel functions shall be decentralized, delegating the
corresponding authority to the departments, offices and
agencies where such functions can be effectively performed.
(Emphasis supplied)
II.
We turn to the second claim of petitioners that their right to security of tenure
was breached by the respondents in promulgating Resolution No. 94-3710
and ordering petitioners' assignment to the Commission's Regional Offices in
Regions III and V. Section 2(3) of Article IX(B) of the 1987 Constitution
declared that "no officer or employee of the Civil Service shall be removed or
suspended except for cause provided by law." Petitioners in effect contend
that they were unlawfully removed from their positions in the OPIA and OPR
by the implementation of Resolution No. 94-3710 and that they cannot,
without their consent, be moved out to the Regional Offices of the
Commission.
We note, firstly, that appointments to the staff of the Commission are not
appointments to a specified public office but rather appointments to particular
positions or ranks. Thus, a person may be appointed to the position of
Director III or Director IV; or to the position of Attorney IV or Attorney V; or to
the position of Records Officer I or Records Officer II; and so forth. In the
instant case, petitioners were each appointed to the position of Director IV,
without specification of any particular office or station. The same is true with
respect to the other persons holding the same position or rank of Director IV
of the Commission.
Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative
Code recognizes reassignment as a management prerogative vested in the
Commission and, for that matter, in any department or agency of government
embraced in the civil service:
Sec. 26. Personnel Actions. — . . .
xxx xxx xxx
As used in this Title, any action denoting the movement or
progress of personnel in the civil service shall be known as
personnel action. Such action shall include appointment
through certification, promotion, transfer, re-instatement, re-
employment, detail, reassignment, demotion, and separation.
All personnel actions shall be in accordance with such rules,
standards, and regulations as may be promulgated by the
Commission.
xxx xxx xxx
(7) Reassignment. An employee may be re-assigned from
one organizational unit to another in the same agency,
Provided, That such re-assignment shall not involve a
reduction in rank status and salary. (Emphasis supplied)
It follows that the reassignment of petitioners Fernandez and de Lima from
their previous positions in OPIA and OPR, respectively, to the Research and
Development Office (RDO) in the Central Office of the Commission in
Metropolitan Manila and their subsequent assignment from the RDO to the
Commission's Regional Offices in Regions V and III had been effected with
express statutory authority and did not constitute removals without lawful
cause. It also follows that such re-assignment did not involve any violation of
the constitutional right of petitioners to security of tenure considering that they
retained their positions of Director IV and would continue to enjoy the same
rank, status and salary at their new assigned stations which they had enjoyed
at the Head Office of the Commission in Metropolitan Manila. Petitioners had
not, in other words, acquired a vested right to serve at the Commission's
Head Office.
Secondly, the above conclusion is compelled not only by the statutory
provisions relevant in the instant case, but also by a long line of cases
decided by this Court in respect of different agencies or offices of
government.
In one of the more recent of these cases, Department of Education Culture
and Sports, etc., et al. v. Court of Appeals, et al., 8 this Court held that a
person who had been appointed as "Secondary School Principal II" in the
Division of City Schools, District II, Quezon City, National Capital Region, and
who had been stationed as High School Principal in the Carlos Albert High
School in Quezon for a number of years, could lawfully be reassigned or
transferred to the Manuel Roxas High School, also in Quezon City, without
demotion in rank or diminution of salry. This Court held:
The aforequoted provision of Republic Act No. 4670
particularly Section 6 thereof which provides that except for
cause and in the exigencies of the service no teacher shall
be transferred without his consent from one station to
another, finds no application in the case at bar as this is
predicated upon the theory that the teacher concerned is
appointed — not merely assigned — to a particular station.
Thus:
The rule pursued by plaintiff only goes so far
as
the appointed indicates a specification.
Otherwise, the constitutionally ordained
security of tenure cannot shield her. In
appointments of this nature, this Court has
consistently rejected the officer's demand to
remain — even as public service dictates
that a transfer be made — in a particular
 station. Judicial attitude toward transfers of
this nature is expressed in the following
statement in Ibañez, et al. vs. Commission
on Elections, et al. (G.R. No.
L-26558, April 27, 1967; 19 SCRA 1002
[1967]);
That security of tenure is an
essential and constitutionally
guaranteed feature of our
Civil Service System, is not
open to debate. The mantle
of its protection extends not
only against removals
without cause but also
against unconsented
transfer which, as repeatedly
enunciatEd, are tantamount
to removals which are within
the ambit of the fundamental
guarantee. However, the
availability of that security of
tenure necessarily depends,
in the first instance, upon
the nature of the
appointment (Hojilla vs.
Marino, 121 Phil. 280
[1965].) Such that the rule
which proscribes transfers
without consent as
anathema to the security of
tenure is predicated upon
the theory that the officer
involved is appointed — not
merely assigned — to a
particular station (Miclat v.
Ganaden, et al., 108 Phil.
439 [1960]; Jaro v. Hon.
Valencia, et al., 118 Phil.
728 [1963]). [Brillantes v.
Guevarra, 27 SCRA 138
(1969)]
The appointment of Navarro as principal does not refer to
any particular station or school. As such, she could be
assigned to any station and she is not entitled to stay
permanently at any specific school. (Bongbong v. Parado, 57
SCRA 623) When she was assigned to the Carlos Albert
High School, it could not have been with the intention to let
her stay in said school permanently. Otherwise, her
appointment would have so stated. Consequently, she may
be assigned to any station or school in Quezon City as the
exigencies of public service require even without consent. As
this Court ruled in Brillantes v. Guevarra, 27 SCRA 138,
143 —
Plaintiff's confident stride falters. She took
too loose a view of the applicable
jurisprudence. Her refuge behind the mantle
of security of tenure guaranteed by the
Constitution is not impenetrable. She
proceeds upon the assumption that she
occupies her station in Sinalang Elementary
School by appointment. But her first
appointment as Principal merely reads thus:
"You are hereby appointed a Principal
(Elementary School) in the Bureau of Public
Schools, Department of Education", without
mentioning her station. She cannot therefore
claim security of tenure as Principal of
Sinalang Elementary School or any particular
station. She may be assigned to any station
as exigency of public service requires, even
without her consent. She thus has no right of
choice. 9 (Emphasis supplied; citation
omitted)
In the very recent case of Fernando, et al. v. Hon. Sto. Tomas, etc., et
a1., 10 the Court addressed appointments of petitioners as "Mediators-Arbiters
in the National Capital Region" in dismissing a challenge on certiorari to
resolutions of the CSC and orders of the Secretary of Labor. The Court said:
Petitioners were appointed as Mediator Arbiters in the
National Capital Region. They were not, however, appointed
to a specific station or particular unit of the Department of
Labor in the National Capital Region (DOLE-NCR).
Consequently, they can always be reassigned from one
organizational unit to another of the same agency where, in
the opinion of respondent Secretary, their services may be
used more effectively. As such they can neither claim a
vested right to the station to which they were assigned nor to
security of tenure thereat. As correctly observed by the
 Solicitor General, petitioners' reassignment is not a transfer
for they were not removed from their position as med-
arbiters. They were not given new appointments to new
positions. It indubitably follows, therefore, that Memorandum
Order No. 4 ordering their reassignment in the interest of the
service is legally in order. 11 (Emphases supplied)
In Quisumbing v. Gumban, 12 the Court, dealing with an appointment
in the Bureau of Public Schools of the Department of Education,
Culture and Sports, ruled as follows:
After a careful scrutiny of the records, it is to be underscored
that the appointment of private respondent Yap is simply that
of a District Supervisor of the Bureau of Public Schools which
does not indicate a specific station (Rollo, p. 13). A such, she
could be assigned to any station and she is no entitled to
stay permanently at any specific station (Bongbong v.
Parado, 57 SCRA 623 [1974]; Department of Education,
Culture and Sports v. Court of Appeals [G.R. 81032, March
22, 1990] citing Brillantes v. Guevarra [27 SCRA 138 [1969]).
13
Again, in Ibañez v. Commission on Elections, 14 the Court had before it
petitioners' appointments as "Election Registrars in the Commission of
Elections," without any intimation to what city, municipality or municipal
district they had been appointed as such. 15 The Court held that since
petitioners "were not appointed to, and consequently not entitled to any
security of tenure or permanence in, any specific station," "on general
principles, they [could] be transferred as the exigencies of the service
required," and that they had no right to complain against any change in
assignment. The Court further held that assignment to a particular station
after issuance of the appointment was not necessary to complete such
appointment:
. . . . We cannot subscribe to the theory that an assignment
to a particular station, in the light of the terms of the
appointments in question, was necessary to complete the
said appointments. The approval thereof by the
Commissioner of Civil Service gave those appointments the
stamp of finality. With the view that the respondent
Commission then took of its power in the premises and the
demand of the mission it set out to accomplish with the
appointments it extended, said appointments were definitely
meant to be complete as then issued. The subsequent
assignment of the appointees thereunder that the said
respondent Commission held in reserve to be exercised as
the needs of each locality justified did not in any way detract
from the perfection attained by the appointments beforehand.
And the respective appointees were entitled only to such
security of tenure as the appointment papers concerned
actually conferred — not in that of any place to which they
may have been subsequently assigned. . . . As things stand,
in default of any particular station stated in their respective
appointments, no security of tenure can be asserted by the
petitioners on the basis of the mere assignments which were
given to them. A contrary rule will erase altogether the
demarcation line we have repeatedly drawn between
appointment and assignment as two distinct concepts in the
law of public officers. 16 (Emphases supplied)
The petitioner, in Miclat v. Ganaden, 17 had been appointed as a "Welfare
Office Incharge, Division of Urban, Rural and Community Administration,
Social Welfare Administration." She was assigned as Social Welfare Incharge
of the Mountain Province, by an office order of the Administrator, Social
Welfare Administration. After a little more than a year; petitioner was
assigned elsewhere and respondent Ganaden transferred to petitioner's first
station in Baguio City. The Court ruled that petitioner was not entitled to
remain in her first station, In Jaro v. Hon. Valencia, et al., 18 petitioner Dr. Jaro
had been appointed "Physician in the Municipal Maternity and Charity Clinics,
Bureau of Hospitals." He was first assigned to the Municipal Maternity and
Charity Clinics in Batulati, Davao, and later to the corresponding clinic in
Saug, Davao and then to Catil, Davao. He was later assigned to the
Municipality of Padada, also of Davao Province. He resisted his last
assignment and brought mandamus against the Secretary of Health to
compel the latter to return him to his station in Catil, Davao as Municipal
Health Officer thereof. The Court, applying Miclat v. Ganaden dismissed this
Petition holding that his appointment not being to any specific station but as a
physician in the Municipal Maternity and Charity Clinics, Bureau of Hospitals,
he could be transferred or assigned to any station where, in the opinion of the
Secretary of Health, his services may be utilized more effectively. 19
Also noteworthy is Sta. Maria v. Lopez 20 which involved the appointment of
petitioner Sta. Maria as "Dean, College of Education, University of the
Philippines." Dean Sta. Maria was transferred by the President of the
University of the Philippines to the Office of the President, U.P., without
demotion in rank or salary, thereby acceding to the demands of student
activists who were boycotting their classes in the U.P. College of Education.
Dean Sta. Maria assailed his transfer as an illegal and unconstitutional
removal from office. In upholding Dean Sta. Maria's claim, the Court,
speaking through Mr. Justice Sanchez, laid down the applicable doctrine in
the following terms:
 4. Concededly, transfers there are which do not amount to
removal. Some such transfer can be effected without the
need for charges being preferred, without trial or hering, and
even without the consent of the employee.
The clue to such transfers may be found in the "nature of the
appointment." Where the appointment does not indicate a
specific station, an employee may be transferred or
reassigned provided the transfer affects no substantial
change in title, rank and salary. Thus one who is appointed
"principal in the Bureau of Public Schools" and is designated
to head a pilot school may be transferred to the post of
principal of another school.
And the rule that outlaws unconsented transfers as
anathema to security of tenure applies only to an officer who
is appointed — not merely assigned — to a particular station.
Such a rule does not prescribe a transfer carried out under a
specific statute that empowers the head of an agency to
periodically reassign the employees and officers in order to
improve the service of the agency. The use of approved
techniques or methods in personnel management to harness
the abilities of employees to promote optimum public service
cannot-be objected to. . . .
5. The next point of inquiry is whether or not Administrative
Order 77 would stand the test of validity vis-a-vis the
principles just enunciated.
xxx xxx xxx
To be stressed at this point, however, is that the appointment
of Sta. Maria is that of "Dean, College of Education,
University of the Philippines." He is not merely a dean "in the
university." His appointment is to a specific position; and,
more importantly, to a specific station. 21 (Citations omitted;
emphases supplied)
For all the foregoing we conclude that the reassignment of petitioners
Fernandez and de Lima from their stations in the OPIA and OPR,
respectively, to the Research Development Office (RDO) and from the RDO
to the Commissions Regional Offices in Regions V and III, respectively,
without their consent, did not constitute a violation of their constitutional right
to security of tenure.
WHEREFORE, the Petition for Certiorari, Prohibition and Mandamus with
Prayer for Writ of Preliminary Injunction or Temporary Restraining Order is
hereby DISMISSED. The Temporary Restraining Order issued by this Court
on 27 September 1994 is hereby LIFTED. Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo
Quiason, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
Footnotes
1 Commissioner Thelma P. Gaminde did not participate in
the adoption of this Resolution.
2 Rollo, pp. 27-29.
3 Book V, Tittle I, Subtitle A, Chapter 3, 1987 Revised
Administrative Code.
4 Please see Motion to Lift Temporary Restraining Order filed
by public respondents, Rollo, pp. 75-77.
5 Appari vs. Court of Appeals, 127 SCRA 231 (1984);
Oliveros v. Villaluz, 57 SCRA 163 (1974); Fernandez vs.
Ledesma, 117 Phil. 630 (1963); Alba vs. Evangelista, 100
Phil. 683 (1957).
6 The dual reference of the term "office" or "public office" is
brought out in the definition of the term found in Section 2(9),
Introductory Provisions of the Revised Administrative Code of
1987:
Office refers, within the framework of
governmental organization, to any major
functional unit of a department or bureau
including regional offices. It may also refer to
any position held or occupied by individual
persons, whose functions are defined by law
or regulation. (Emphasis supplied)
7 The Civil Service Commission is not the only agency of
government that has been expressly vested with this
authority to effect changes in internal organization.
Comparable authority has been lodged in, e.g., the
Commission on Elections and the Office of the President. In
respect of Comelec, Section 13, Chapter 3, Subtitle C, Title I,
Book V, 1987 Revised Administrative Code reads as follows:
The Commission may make changes in the composition,
distribution, and assignment of field offices, as well its
personnel, whenever the exigencies of the service and the
interest of free, orderly, honest, peaceful, and credible
election so require: Provided, That such changes shall be
effective and enforceable only for the duration of the election
period concerned and shall not constitute a demotion, either
in rank or salary, nor result in a change of status; and
Provided further that there shall be no changes in the
composition, distribution, or assignment within thirty days
before the election, except for cause, and after due notice
and hearing, and that in no case shall a regional or assistant
regional director be assigned to a region, provincial election
supervisor to a province, or municipality, where he and/or his
spouse are related to any candidate within the fourth civil
degree or consanguinity or affinity as the case may be.
(Section 13, Chapter 3, Subtitle C, Title 1, Book V, Revised
Administrative Code of 1987; Emphasis supplied)
8 183 SCRA 555 (1990).
9 183 SCRA at 561-562.
10 234 SCRA 546 (1994).
11 234 SCRA at 553.
12 193 SCRA 520 (1991).
13 193 SCRA at 523. See also Brillantes v. Guevarra, 27
SCRA 138 (1969), where petitioner Brillantes had an
appointment as (a) Principal, Elementary School, in the
Bureau of Public Schools Department of Education and
where the Court reached the same conclusion.
14 19 SCRA 1002 (1967).
15 For other cases involving election registrars and applying
the same rule, see Braganza v. Commission on Elections, 20
SCRA 1023 (1967); Real, Jr. v. Commission on Elections, et
al., 21 SCRA 331 (1967).

With respect to the Office of the President, Section 31, 16 19 SCRA at 1012-1013.
Chapter 10, Title III, Book III, Revised Administrative Code of
1987, vested the President with the following authority:
17 108 Phil. 439 (1960).
The President subject to the policy in the Executive Office
18 118 Phil. 728 (1963).
and in order to achieve simplicity, economy, and efficiency,
shall have continuing authority to reorganize the
administrative structure of the Office of the President. For this 19 See also Bongbong v. Parade et al., 57 SCRA 623 (1974)
purpose, he may take any of the following actions: which involved petitioner's appointment as "rural health
physician in the Bureau of Rural Health Units Projects."
(1) Restructure the internal organization of the Office of the
President Proper, including the immediate offices, the 20 31 SCRA 637 (1970).
Presidential Special Assistant Adviser System and the
Common Staff Support System, by abolishing, consolidating, 21 31 SCRA at 652-654.
or merging units thereof, or transferring functions from one
unit to another;
The Lawphil Project - Arellano Law Foundation Republic of the Philippines
xxx xxx xxx SUPREME COURT
Manila
(Section 31, Chapter 10, Title 3, Book III Revised
Administrative Code of 1987; Emphasis supplied) EN BANC
G.R. No. L-23226             March 4, 1925
VICENTE SEGOVIA, petitioner-appellee,
vs.
PEDRO NOEL, respondent-appellant.
Provincial Fiscal Diaz for appellant.
Del Rosario and Del Rosario for appellee.
Vicente Zacarias as amicus curiae.
MALCOLM, J.:
The question to be decided on this appeal is whether that portion of Act No.
3107 which provides, that justices of the peace and auxiliary justices of the
peace shall be appointed to serve until they have reached the age of sixty-
five years, should be given retroactive or prospective effect.
Vicente Segovia was appointed justice of the peace of Dumanjug, Cebu, on
January 21, 1907. He continuously occupied this position until having passed
sixty-five mile- stones, he was ordered by the Secretary of Justice on July 1,
1924, to vacate the office. Since that date, Pedro Noel, the auxiliary justice of
the peace has acted as justice of the peace for the municipality of Dumanjug.
Mr. Segovia being desirous of avoiding a public scandal and of opposing
physical resistance to the occupancy of the office of justice of the peace by
the auxiliary justice of the peace, instituted friendly quo warranto proceedings
in the Court of First Instance of Cebu to inquire into the right of Pedro Noel to
occupy the office of justice of the peace, to oust the latter therefrom, and to
procure reinstatement as justice of the peace of Dumanjug. To this complaint,
Pedro Noel interposed a demurrer on the ground that it did not allege facts
sufficient to constitute a cause of action, because Act No. 3107 was
constitutional and because Mr. Segovia being sixty-five years old had
automatically ceased to be justice of the peace. On the issue thus framed and
on stipulated facts, judgment was rendered by Honorable Adolph Wislizenus,
Judge of First Instance, overruling the demurrer, and in favor of petitioner and
against respondent.
Proceeding by way of elimination so as to resolve the case into its simplest
factors, it will first be noted that the petitioner abandons the untenable
position, assumed by him in one portion of his complaint, to the effect that
section 1 of Act No. 3107 is unconstitutional in that it impairs the contractual
right of the petitioner to an office. It is a fundamental principle that a public
office cannot be regarded as the property of the incumbent, and that a public
office is not a contract.
It will next be noted that, while the respondent as appellant assigns three
errors in this court, the first two relating to preliminary matters are ultimately
renounced by him in order that there may be an authoritative decision on the
main issue. The third error specified and argued with ability by the provincial
fiscal of Cebu, is that the trial judge erred in declaring that the limitation
regarding the age of justices of the peace provided by section 1 of Act No.
3107 is not applicable to justices of the peace and auxiliary justices of the
peace appointed and acting before said law went into effect.
Coming now to the law, we find on investigation the original provision
pertinent to the appointment and term of office of justices of the peace, in
section 67 of Act No. 136, wherein it was provided that justices of the peace
shall hold office during the pleasure of the Commission. Act No. 1450, in
force when Vicente Segovia was originally appointed justice of the peace,
amended section 67 of the Judiciary Law by making the term of office of
justices and auxiliary justices of the peace two years from the first Monday in
January nearest the date of appointment. Shortly after Segovia's
appointment, however, the law was again amended by Act No. 1627 by
providing that "all justices of the peace and auxiliary justices of the peace
shall hold office during good behavior and those now in office shall so
continue." Later amended by Acts Nos. 2041 and 2617, the law was
ultimately codified in sections 203 and 206 of the Administrative Code.
Codal section 203 in its first paragraph provides that "one justice of the peace
and one auxiliary justice of the peace shall be appointed by the Governor-
General for the City of Manila, the City of Baguio, and for each municipality,
township, and municipal district in the Philippine Islands, and if the public
interests shall so require, for any other minor political division or unorganized
territory in said Islands." It was this section which section 1 of Act No. 3107
amended by adding at the end thereof the following proviso: "Provided, That
justices and auxiliary justices of the peace shall be appointed to serve until
they have reached the age of sixty-five years." But section 206 of the
Administrative Code entitled "Tenure of office," and reading "a justice of the
peace having the requisite legal qualifications shall hold office during good
behavior unless his office be lawfully abolished or merged in the jurisdiction of
some other justice," was left unchanged by Act No. 3107.
A sound canon of statutory construction is that a statute operates
prospectively only and never retroactively, unless the legislative intent to the
contrary is made manifest either by the express terms of the statute or by
necessary implication. Following the lead of the United States Supreme Court
and putting the rule more strongly, a statute ought not to receive a
construction making it act retroactively, unless the words used are so clear,
strong, and imperative that no other meaning can be annexed to them, or
unless the intention of the legislature cannot be otherwise satisfied. No court
will hold a statute to be retroactive when the legislature has not said so. As
our Civil Code has it in article 3, "Law shall not have a retroactive effect
unless therein otherwise provided." (Farrel vs. Pingree [1888], 5 Utah, 443;
16 Pac., 843; Greer vs. City of Asheville [1894], 114 N.C., 495; United States
Fidelity and Guaranty Co. vs. Struthers Wells Co. [1907], 209 U.S., 306;
Montilla vs. Agustinian Corporation [1913], 24 Phil., 220; In re will of Riosa
[1918], 39 Phil., 23.)
The same rule is followed by the courts with reference to public offices. A
well-known New York decision held that "though there is no vested right in an
office, which may not be disturbed by legislation, yet the incumbent has, in a
sense, a right to his office. If that right is to be taken away by statute, the
terms should be clear in which the purpose is stated." (People ex rel. Ryan
vs. Green [1874], 58 N.Y., 295.) In another case, a new constitutional
provision as to the advanced age which should prevent the incumbents of
certain judicial offices from retaining them was held prospective; it did not
apply to persons in office at the time of its taking effect. (People vs. Gardner,
59 Barb., 198; II Lewis' Sutherland Statutory Construction, Chap. XVII,
particularly pages 1161, 1162; Mechem on Public Officers, sec. 389.)
The case at bar is not the same as the case of Chanco vs. Imperial ( [1916],
34 Phil., 329). In that case, the question was as to the validity of section 7 of
Act No. 2347. The law under consideration not only provided that Judges of
First Instance shall serve until they have reached the age of sixty-five years,
but it further provided "that the present judges of Courts of First Instance ...
vacate their positions on the taking effect of this Act: and the Governor-
General, with the advice and consent of the Philippine Commission, shall
make new appointments of judges of Courts of First Instance ... ." There the
intention of the Legislature to vacate the office was clearly expressed. Here, it
is not expressed at all.
The language of Act No. 3107 amendatory of section 203 of the
Administrative Code, gives no indication of retroactive effect. The law
signifies no purpose of operating upon existing rights. A proviso was merely
tacked on to section 203 of the Administrative Code, while leaving intact
section 206 of the same Code which permits justices of the peace to hold
office during good behavior. In the absence of provisions expressly making
the law applicable to justices of the peace then in office, and in the absence
of provisions impliedly indicative of such legislative intent, the courts would
not be justified in giving the law an interpretation which would legislate faithful
public servants out of office.
Answering the question with which we began our decision, we hold that the
proviso added to section 203 of the Administrative Code by section 1 of Act
No. 3107, providing that justices and auxiliary justices of the peace shall be
appointed to serve until they have reached the age of sixty-five years, should
be given prospective effect only, and so is not applicable to justices of the
peace and auxiliary justices of the peace appointed before Act No. 3107 went
into force. Consequently, it results that the decision of the trial court is correct
in its findings of fact and law and in its disposition of the case.
Judgment affirmed, without costs. It is so ordered.
Villamor, Ostrand, Johns, and Romualdez, JJ., concur.
Johnson, J., concurs in the result.
The Lawphil Project - Arellano Law Foundation
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 81954             August 8, 1989
CESAR Z. DARIO, petitioner,
vs.
HON. SALVADOR M. MISON, HON. VICENTE JAYME and HON.
CATALINO MACARAIG, JR., in their respective capacities as
Commissioner of Customs, Secretary of Finance, and Executive
Secretary, respondents.
G.R. No. 81967             August 8, 1989
VICENTE A. FERIA JR., petitioner,
vs.
HON. SALVADOR M. MISON, HON. VICENTE JAYME, and HON.
CATALINO MACARAIG, JR., in their respective capacities as
Commissioner of Customs, Secretary of Finance, and Executive
Secretary, respondents.
G.R. No. 82023             August 8, 1989
ADOLFO CASARENO, PACIFICO LAGLEVA, JULIAN C. ESPIRITU,
DENNIS A. AZARRAGA, RENATO DE JESUS, NICASIO C. GAMBOA,
CORAZON RALLOS NIEVES, FELICITACION R. GELUZ, LEODEGARIO
H. FLORESCA, SUBAER PACASUM, ZENAIDA LANARIA, JOSE B.
ORTIZ, GLICERIO R. DOLAR, CORNELIO NAPA, PABLO B. SANTOS,
FERMIN RODRIGUEZ, DALISAY BAUTISTA, LEONARDO JOSE,
ALBERTO LONTOK, PORFIRIO TABINO, JOSE BARREDO, ROBERTO
ARNALDO, ESTER TAN, PEDRO BAKAL, ROSARIO DAVID, RODOLFO
AFUANG, LORENZO CATRE, LEONCIA CATRE, ROBERTO ABADA,
petitioners,
vs.
COMMISSIONER SALVADOR M. MISON, COMMISSIONER, BUREAU OF
CUSTOMS, respondent.
G.R. No. 83737             August 8, 1989
BENEDICTO L. AMASA and WILLIAM S. DIONISIO, petitioners,
vs.
PATRICIA A. STO. TOMAS, in her capacity as Chairman of the Civil
Service Commission and SALVADOR MISON, in his capacity as
Commissioner of the Bureau of Customs, respondents.
G.R. No. 85310             August 8, 1989
SALVADOR M. MISON, in his capacity as Commissioner of Customs,
petitioner,
vs.
CIVIL SERVICE COMMISSION, ABACA, SISINIO T., ABAD, ROGELIO C.,
ABADIANO, JOSE P., ABCEDE, NEMECIO C., ABIOG, ELY F., ABLAZA,
AURORA M., AGBAYANI, NELSON I., AGRES ANICETO, AGUILAR,
FLOR, AGUILUCHO MA. TERESA R., AGUSTIN, BONIFACIO T., ALANO,
ALEX P., ALBA, MAXIMO F. JR., ALBANO, ROBERT B., ALCANTARA,
JOSE G., ALMARIO, RODOLFO F., ALVEZ, ROMUALDO R., AMISTAD
RUDY M., AMOS, FRANCIS F., ANDRES, RODRIGO V., ANGELES,
RICARDO S., ANOLIN, MILAGROS H., AQUINO, PASCASIO E., ARABE,
MELINDA M., ARCANGEL, AGUSTIN S., JR., ARPON, ULPLIANO U., JR.,
ARREZA, ARTEMIO M., JR., ARROJO, ANTONIO P., ARVISU,
ALEXANDER S., ASCAÑ;O, ANTONIO T., ASLAHON, JULAHON P.,
ASUNCION, VICTOR R., ATANGAN, LORNA S., ATIENZA, ALEXANDER
R., BACAL, URSULINO C., BAÑ;AGA, MARLOWE, Z., BANTA, ALBERTO
T., BARREDO, JOSE B., BARROS, VICTOR C., BARTOLOME, FELIPE A.,
BAYSAC, REYNALDO S., BELENO, ANTONIO B., BERNARDO, ROMEO
D., BERNAS, MARCIANO S., BOHOL, AUXILIADOR G., BRAVO, VICTOR
M., BULEG, BALILIS R., CALNEA, MERCEDES M., CALVO, HONESTO G.,
CAMACHO, CARLOS V., CAMPOS, RODOLFO C., CAPULONG,
RODRIGO G., CARINGAL, GRACIA Z., CARLOS, LORENZO B.,
CARRANTO, FIDEL U., CARUNGCONG, ALFREDO M., CASTRO,
PATRICIA J., CATELO, ROGELIO B., CATURLA, MANUEL B., CENIZAL,
JOSEFINA F., CINCO, LUISITO, CONDE0, JOSE C., JR., CORCUERA,
FIDEL S., CORNETA, VICENTE S., CORONADO, RICARDO S., CRUZ,
EDUARDO S., CRUZ, EDILBERTO A., CRUZ, EFIGENIA B., CRUZADO,
MARCIAL C., CUSTODIO, RODOLFO M., DABON, NORMA M., DALINDIN,
EDNA MAE D., DANDAL, EDEN F., DATUHARON, SATA A., DAZO,
GODOFREDO L., DE CASTRO, LEOPAPA, DE GUZMAN, ANTONIO A.,
DE GUZMAN, RENATO E., DE LA CRUZ, AMADO A., JR., DE LA CRUZ,
FRANCISCO C., DE LA PEÑ;A, LEONARDO, DEL CAMPO, ORLANDO,
DEL RIO, MAMERTO P., JR., DEMESA, WILHELMINA T., DIMAKUTA,
SALIC L., DIZON, FELICITAS A., DOCTOR, HEIDY M., DOLAR, GLICERIO
R., DOMINGO, NICANOR J., DOMINGO, PERFECTO V., JR., DUAY,
JUANA G., DYSANGCO, RENATO F., EDILLOR, ALFREDO P., ELEVAZO,
LEONARDO A., ESCUYOS, MANUEL M., JR., ESMERIA, ANTONIO E.,
ESPALDON, MA. LOURDES H., ESPINA, FRANCO A., ESTURCO,
RODOLFO C., EVANGELINO, FERMIN I., FELIX, ERNESTO G.,
FERNANDEZ, ANDREW M., FERRAREN, ANTONIO C., FERRERA,
WENCESLAO A., FRANCISCO, PELAGIO S., JR., FUENTES, RUDY L.,
GAGALANG, RENATO V., GALANG, EDGARDO R., GAMBOA, ANTONIO
C., GAN, ALBERTO R., GARCIA, GILBERT M., GARCIA, EDNA V.,
GARCIA, JUAN L., GAVIOLA, LILIAN V., GEMPARO, SEGUNDINA G.,
GOBENCIONG, FLORDELIZ B., GRATE, FREDERICK R., GREGORIO,
LAURO P., GUARTICO, AMMON H., GUIANG, MYRNA N., GUINTO,
DELFIN C., HERNANDEZ, LUCAS A., HONRALES, LORETO N., HUERTO,
LEOPOLDO H., HULAR , LANNYROSS E., IBAÑ;EZ, ESTER C., ILAGAN,
HONORATO C., INFANTE, REYNALDO C., ISAIS, RAY C., ISMAEL,
HADJI AKRAM B., JANOLO, VIRGILIO M., JAVIER, AMADOR L., JAVIER,
ROBERTO S., JAVIER, WILLIAM R., JOVEN, MEMIA A., JULIAN,
REYNALDO V., JUMAMOY, ABUNDIO A., JUMAQUIAO, DOMINGO F.,
KAINDOY, PASCUAL B., JR., KOH, NANIE G., LABILLES, ERNESTO S.,
LABRADOR, WILFREDO M., LAGA, BIENVENIDO M., LAGLEVA,
PACIFICO Z., LAGMAN, EVANGELINE G., LAMPONG, WILFREDO G.,
LANDICHO, RESTITUTO A., LAPITAN, CAMILO M., LAURENTE,
REYNALDO A., LICARTE, EVARISTO R., LIPIO, VICTOR O., LITTAUA,
FRANKLIN Z., LOPEZ, MELENCIO L., LUMBA, OLIVIA., MACAISA,
BENITO T., MACAISA, ERLINDA C., MAGAT, ELPIDIO, MAGLAYA,
FERNANDO P., MALABANAN, ALFREDO C., MALIBIRAN, ROSITA D.,
MALIJAN, LAZARO V., MALLI, JAVIER M., MANAHAN, RAMON S.,
MANUEL, ELPIDIO R., MARAVILLA, GIL B., MARCELO, GIL C.,
MARIÑ;AS, RODOLFO V., MAROKET, JESUS C., MARTIN, NEMENCIO
A., MARTINEZ, ROMEO M., MARTINEZ, ROSELINA M., MATIBAG,
ANGELINA G., MATUGAS, ERNESTO T., MATUGAS, FRANCISCO T.,
MAYUGA, PORTIA E., MEDINA, NESTOR M., MEDINA, ROLANDO S.,
MENDAVIA, AVELINO I., MENDOZA, POTENCIANO G., MIL, RAY M.,
MIRAVALLES, ANASTACIA L., MONFORTE, EUGENIO, JR., G.,
MONTANO, ERNESTO F., MONTERO, JUAN M. III., MORALDE,
ESMERALDO B., JR., MORALES, CONCHITA D.L., MORALES, NESTOR
P., MORALES, SHIRLEY S., MUNAR, JUANITA L., MUÑ;OZ, VICENTE R.,
MURILLO, MANUEL M., NACION, PEDRO R., NAGAL, HENRY N., NAPA,
CORNELIO B., NAVARRO, HENRY L., NEJAL, FREDRICK E., NICOLAS,
REYNALDO S., NIEVES, RUFINO A., OLAIVAR, SEBASTIAN T.,
OLEGARIO, LEO Q., ORTEGA, ARLENE R., ORTEGA, JESUS R.,
OSORIO, ABNER S., PAPIO, FLORENTINO T. II, PASCUA, ARNULFO A.,
PASTOR, ROSARIO, PELAYO, ROSARIO L., PEÑ;A, AIDA C., PEREZ,
ESPERIDION B., PEREZ, JESUS BAYANI M., PRE, ISIDRO A.,
PRUDENCIADO, EULOGIA S., PUNZALAN, LAMBERTO N., PURA,
ARNOLD T., QUINONES, EDGARDO I., QUINTOS, AMADEO C., JR.,
QUIRAY, NICOLAS C., RAMIREZ, ROBERTO P., RAÑ;ADA, RODRIGO C.,
RARAS, ANTONIO A., RAVAL, VIOLETA V., RAZAL, BETTY R., REGALA,
PONCE F., REYES, LIBERATO R., REYES, MANUEL E., REYES, NORMA
Z., REYES, TELESFORO F., RIVERA, ROSITA L., ROCES, ROBERTO V.,
ROQUE, TERESITA S., ROSANES, MARILOU M., ROSETE, ADAN I.,
RUANTO, REY, CRISTO C., JR., SABLADA, PASCASIO G., SALAZAR,
SILVERIA S., SALAZAR, VICTORIA A., SALIMBACOD, PERLITA C.,
SALMINGO, LOURDES M., SANTIAGO, EMELITA B., SATINA, PORFIRIO
C., SEKITO, COSME B., JR., SIMON, RAMON P., SINGSON, MELECIO C.,
SORIANO, ANGELO L., SORIANO, MAGDALENA R., SUMULONG,
ISIDRO L., JR., SUNICO, ABELARDO T., TABIJE, EMMA B., TAN, RUDY,
GOROSPE, TAN, ESTER S., TAN, JULITA S., TECSON, BEATRIZ B.,
TOLENTINO, BENIGNO A., TURINGAN, ENRICO T., JR., UMPA, ALI A.,
VALIC, LUCIO E., VASQUEZ, NICANOR B., VELARDE, EDGARDO C.,
VERA, AVELINO A., VERAME, OSCAR E., VIADO, LILIAN T., VIERNES,
NAPOLEON K., VILLALON, DENNIS A., VILLAR, LUZ L., VILLALUZ,
EMELITO V., ZATA, ANGEL A., JR., ACHARON, CRISTETO, ALBA,
RENATO B., AMON, JULITA C., AUSTRIA, ERNESTO C., CALO,
RAYMUNDO M., CENTENO, BENJAMIN R., DE CASTRO, LEOPAPA C .,
DONATO, ESTELITA P., DONATO, FELIPE S., FLORES, PEDRITO S.,
GALAROSA, RENATO, MALAWI, MAUYAG, MONTENEGRO,
FRANCISCO M., OMEGA, PETRONILO T., SANTOS, GUILLERMO F.,
TEMPLO, CELSO, VALDERAMA, JAIME B., and VALDEZ, NORA M.,
respondents.
G.R. No. 85335             August 8, 1989
FRANKLIN Z. LITTAUA, ADAN I. ROSETE, FRANCISCO T. MATUGAS,
MA. J. ANGELINA G. MATIBAG, LEODEGARDIO H. FLORESCA,
LEONARDO A. DELA PEÑ;A, ABELARDO T. SUNICO, MELENCIO L.
LOPEZ, NEMENCIO A. MARTIN, RUDY M. AMISTAD, ERNESTO T.
MATUGAS, SILVERIA S. SALAZAR, LILLIAN V. GAVIOLA, MILAGROS
ANOLIN, JOSE B. ORTIZ, ARTEMIO ARREZA, JR., GILVERTO M.
GARCIA, ANTONIO A. RARAS, FLORDELINA B. GOBENCIONG,
ANICETO AGRES, EDGAR Y. QUINONES, MANUEL B. CATURLA, ELY F.
ABIOG, RODRIGO C. RANADA, LAURO GREGORIO, ALBERTO I. GAN,
EDGARDO GALANG, RAY C. ISAIS, NICANOR B. VASQUEZ, MANUEL
ESCUYOS, JR., ANTONIO B. BELENO, ELPIO R. MANUEL, AUXILIADOR
C. BOHOL, LEONARDO ELEVAZO, VICENTE S. CORNETA, petitioners,
vs.
COM. SALVADOR M. MISON/BUREAU OF CUSTOMS and the CIVIL
SERVICE COMMISSION, respondents.
G.R. No. 86241             August 8, 1989
SALVADOR M. MISON, in his capacity as Commissioner of Customs,
petitioner,
vs.
CIVIL SERVICE COMMISSION, SENEN S. DIMAGUILA, ROMEO P.
ARABE BERNARDO S. QUINTONG, GREGORIO P. REYES, and
ROMULO C. BADILLO respondents
SARMIENTO, J.:
The Court writes finis to this contreversy that has raged bitterly for the several
months. It does so out of ligitimate presentement of more suits reaching it as
a consequence of the government reorganization and the instability it has
wrought on the performance and efficiency of the bureaucracy. The Court is
apprehensive that unless the final word is given and the ground rules are
settled, the issue will fester, and likely foment on the constitutional crisis for
the nation, itself biset with grave and serious problems.
The facts are not in dispute.
On March 25, 1986, President Corazon Aquino promulgated Proclamation
No. 3, "DECLARING A NATIONAL POLICY TO IMPLEMENT THE
REFORMS MANDATED BY THE PEOPLE, PROTECTING THEIR BASIC
RIGHTS, ADOPTING A PROVISIONAL CONSTITUTION, AND PROVIDING
FOR AN ORDERLY TRANSITION TO A GOVERNMENT UNDER A NEW
CONSTITUTION." Among other things, Proclamation No. 3 provided:
SECTION 1. ...
The President shall give priority to measures to achieve the mandate
of the people to:
(a) Completely reorganize the government, eradicate unjust
and oppressive structures, and all iniquitous vestiges of the
previous regime; 1
 ...
Pursuant thereto, it was also provided:
SECTION 1. In the reorganization of the government, priority shall be
given to measures to promote economy, efficiency, and the
eradication of graft and corruption.
SECTION 2. All elective and appointive officials and employees
under the 1973 Constitution shall continue in office until otherwise
provided by proclamation or executive order or upon the appointment
and qualification of their successors, if such is made within a period
of one year from February 25, 1986.
SECTION 3. Any public officer or employee separated from the
service as a result of the organization effected under this
Proclamation shall, if entitled under the laws then in force, receive the
retirement and other benefits accruing thereunder.
SECTION 4. The records, equipment, buildings, facilities and other
properties of all government offices shall be carefully preserved. In
case any office or body is abolished or reorganized pursuant to this
Proclamation, its FUNDS and properties shall be transferred to the
office or body to which its powers, functions and responsibilities
substantially pertain. 2
Actually, the reorganization process started as early as February 25, 1986,
when the President, in her first act in office, called upon "all appointive public
officials to submit their courtesy resignation(s) beginning with the members of
the Supreme Court."3 Later on, she abolished the Batasang Pambansa 4 and
the positions of Prime Minister and Cabinet 5 under the 1973 Constitution.
Since then, the President has issued a number of executive orders and
directives reorganizing various other government offices, a number of which,
with respect to elected local officials, has been challenged in this Court, 6 and
two of which, with respect to appointed functionaries, have likewise been
questioned herein. 7
On May 28, 1986, the President enacted Executive Order No. 17,
"PRESCRIBING RULES AND REGULATIONS FOR THE
IMPLEMENTATION OF SECTION 2, ARTICLE III OF THE FREEDOM
CONSTITUTION." Executive Order No. 17 recognized the "unnecessary
anxiety and demoralization among the deserving officials and employees" the
ongoing government reorganization had generated, and prescribed as
"grounds for the separation/replacement of personnel," the following:
SECTION 3. The following shall be the grounds for separation
replacement of personnel:
1) Existence of a case for summary dismissal pursuant to
Section 40 of the Civil Service Law;
2) Existence of a probable cause for violation of the Anti-
Graft and Corrupt Practices Act as determined by the Mnistry
Head concerned;
3) Gross incompetence or inefficiency in the discharge of
functions;
4) Misuse of public office for partisan political purposes;
5) Any other analogous ground showing that the incumbent is
unfit to remain in the service or his separation/replacement is
in the interest of the service.8
On January 30, 1987, the President promulgated Executive Order No. 127,
"REORGANIZING THE MINISTRY OF FINANCE." 9 Among other offices,
Executive Order No. 127 provided for the reorganization of the Bureau of
Customs 10 and prescribed a new staffing pattern therefor.
Three days later, on February 2, 1987, 11 the Filipino people adopted the new
Constitution.
On January 6, 1988, incumbent Commissioner of Customs Salvador Mison
issued a Memorandum, in the nature of "Guidelines on the Implementation of
Reorganization Executive Orders," 12 prescribing the procedure in personnel
placement. It also provided:
1. By February 28, 1988, the employees covered by
Executive Order 127 and the grace period extended to the
Bureau of Customs by the President of the Philippines on
reorganization shall be:
a) informed of their re-appointment, or
b) offered another position in the same department or
agency or
c) informed of their termination. 13
On the same date, Commissioner Mison constituted a Reorganization
Appeals Board charged with adjudicating appeals from removals under the 3. ADOLFO CASARENO
above Memorandum. 14 On January 26, 1988, Commissioner Mison
addressed several notices to various Customs officials, in the tenor as
4. PACIFICO LAGLEVA
follows:
5. JULIAN C. ESPIRITU
Sir:
6. DENNIS A. AZARRAGA
Please be informed that the Bureau is now in the process of
implementing the Reorganization Program under Executive Order
No. 127. 7. RENATO DE JESUS

Pursuant to Section 59 of the same Executive Order, all officers and 8. NICASIO C. GAMBOA
employees of the Department of Finance, or the Bureau of Customs
in particular, shall continue to perform their respective duties and 9. CORAZON RALLOS NIEVES
responsibilities in a hold-over capacity, and that those incumbents
whose positions are not carried in the new reorganization pattern, or 10. FELICITACION R. GELUZ
who are not re- appointed, shall be deemed separated from the
service. 11. LEODEGARIO H. FLORESCA

In this connection, we regret to inform you that your services are 12. SUBAER PACASUM
hereby terminated as of February 28, 1988. Subject to the normal
clearances, you may receive the retirement benefits to which you
may be entitled under existing laws, rules and regulations. 13. ZENAIDA LANARIA

In the meantime, your name will be included in the consolidated list 14. JOSE B. ORTIZ
compiled by the Civil Service Commission so that you may be given
priority for future employment with the Government as the need 15. GLICERIO R. DOLAR
arises.
16. CORNELIO NAPA
Sincerely
yours, 17. PABLO B. SANTOS
(Sgd)
SALVADOR 18. FERMIN RODRIGUEZ
M. MISON
Commission
19. DALISAY BAUTISTA
er15
20. LEONARDO JOSE
As far as the records will yield, the following were recipients of these notices:
21. ALBERTO LONTOK
1. CESAR DARIO
22. PORFIRIO TABINO
2. VICENTE FERIA, JR.
23. JOSE BARREDO 43. ALANO, ALEX P.

24. ROBERTO ARNALDO 44. ALBA, MAXIMO F. JR.

25. ESTER TAN 45. ALBANO, ROBERT B.

26. PEDRO BAKAL 46. ALCANTARA, JOSE G.

27. ROSARIO DAVID 47. ALMARIO, RODOLFO F.

28. RODOLFO AFUANG 48. ALVEZ, ROMUALDO R.

29. LORENZO CATRE 49. AMISTAD, RUDY M.

30. LEONCIA CATRE 50. AMOS, FRANCIS F.

31. ROBERTO ABADA 51. ANDRES, RODRIGO V.

32. ABACA, SISINIO T. 52. ANGELES, RICARDO S.

33. ABAD, ROGELIO C. 53. ANOLIN, MILAGROS H.

34. ABADIANO, JOSE P 54. AQUINO, PASCASIO E. L.

35. ABCEDE, NEMECIO C. 55. ARABE, MELINDA M.

36. ABIOG, ELY F. 56. ARCANGEL, AGUSTIN S, JR.

37. ABLAZA, AURORA M. 57. ARPON, ULPIANO U., JR.

38. AGBAYANI, NELSON I. 58. ARREZA, ARTEMIO M, JR.

39. AGRES, ANICETO 59. ARROJO, ANTONIO P.

40. AGUILAR, FLOR 60. ARVISU, ALEXANDER S.

41. AGUILUCHO, MA. TERESA R. 61. ASCAÑ;O, ANTONIO T.

42. AGUSTIN, BONIFACIO T. 62. ASLAHON, JULAHON P.

63. ASUNCION, VICTOR R. 83. CARINGAL, GRACIA Z.

64. ATANGAN, LORNA S. 84. CARLOS, LORENZO B.

65. ANTIENZA, ALEXANDER R. 85. CARRANTO, FIDEL U.

66. BACAL URSULINO C. 86. CARUNGCONG, ALFREDO M.

67. BAÑ;AGA, MARLOWE Z. 87. CASTRO, PATRICIA J.

68. BANTA, ALBERTO T. 88. CATELO, ROGELIO B.

69. BARROS, VICTOR C. 89. CATURLA, MANUEL B.

70. BARTOLOME, FELIPE A. 90. CENIZAL, JOSEFINA F.

71. BAYSAC, REYNALDO S. 91. CINCO, LUISITO

72. BELENO, ANTONIO B. 92. CONDE, JOSE C., JR.

73. BERNARDO, ROMEO D. 93. CORCUERA, FIDEL S.

74. BERNAS, MARCIANO S. 94. CORNETA, VICENTE S.

75. BOHOL, AUXILIADOR G. 95. CORONADO, RICARDO S.

76. BRAVO, VICTOR M. 96. CRUZ, EDUARDO S.

77. BULEG, BALILIS R. 97. CRUZ, EDILBERTO A,

78. CALNEA, MERCEDES M. 98. CRUZ, EFIGENIA B.

79. CALVO, HONESTO G. 99. CRUZADO,NORMA M.

80. CAMACHO, CARLOS V. 100. CUSTODIO, RODOLFO M.

81. CAMPOS, RODOLFO C. 101. DABON, NORMA M.

82. CAPULONG, RODRIGO G. 102. DALINDIN, EDNA MAE D.

103. DANDAL, EDEN F. 123. ELEVAZO, LEONARDO A

104. DATUHARON, SATA A. 124. ESCUYOS, MANUEL M., JR.

105. DAZO, GODOFREDO L. 125. ESMERIA, ANTONIO E.

106. DE CASTRO, LEOPAPA 126. ESPALDON, MA. LOURDES H.

107. DE GUZMAN, ANTONIO A. 127. ESPINA, FRANCO A.

108. DE GUZMAN, RENATO E. 128. ESTURCO, RODOLFO C.

109. DE LA CRUZ, AMADO A., JR. 129. EVANGELINO, FERMIN I.

110. DE LA CRUZ, FRANCISCO C. 130. FELIX, ERNESTO G.

111. DE LA PEÑ;A, LEONARDO 131. FERNANDEZ, ANDREW M.

112. DEL CAMPO, ORLANDO 132. FERRAREN, ANTONIO C.

113. DEL RIO, MAMERTO P., JR. 133. FERRERA, WENCESLAO A.

114. DEMESA, WILHELMINA T. 134. FRANCISCO, PELAGIO S, JR.

115. DIMAKUTA, SALIC L. 135. FUENTES, RUDY L.

116. DIZON, FELICITAS A. 136. GAGALANG, RENATO V.

117. DOCTOR, HEIDY M. 137. GALANG, EDGARDO R.

118. DOMINGO, NICANOR J. 138. GAMBOA, ANTONIO C.

119. DOMINGO, PERFECTO V., JR. 139. GAN, ALBERTO P

120. DUAY, JUANA G. 140. GARCIA, GILBERT M.

121. DYSANGCO, RENATO F. 141. GARCIA, EDNA V.

122. EDILLOR, ALFREDO P. 142. GARCIA, JUAN L.

143. GAVIOIA, LILIAN V. 163. JAVIER, WILLIAM R.

144. GEMPARO, SEGUNDINA G. 164. JOVEN, MEMIA A.

145. GOBENCIONG, FLORDELIZ B. 165. JULIAN, REYNALDO V.

146. GRATE, FREDERICK R. 166. JUMAMOY, ABUNDIO A.

147. GREGORIO, LAURO P. 167. JUMAQUIAO, DOMINGO F.

148. GUARTICO, AMMON H. 168. KAINDOY, PASCUAL B., JR.

149. GUIANG, MYRNA N. 169. KOH, NANIE G.

150. GUINTO, DELFIN C. 170. LABILLES, ERNESTO S.

151. HERNANDEZ, LUCAS A. 171. LABRADOR, WILFREDO M.

152. HONRALES, LORETO N. 172. LAGA, BIENVENIDO M.

153. HUERTO, LEOPOLDO H. 173. LAGMAN, EVANGELINE G.

154. HULAR, LANNYROSS E. 174. LAMPONG, WILFREDO G.

155. IBAÑ;EZ, ESTER C. 175. LANDICHO, RESTITUTO A.

156. ILAGAN, HONORATO C. 176. LAPITAN, CAMILO M.

157. INFANTE, REYNALDO C. 177. LAURENTE, REYNALDO A.

158. ISAIS, RAY C. 178. LICARTE, EVARISTO R.

159. ISMAEL, HADJI AKRAM B. 179. LIPIO, VICTOR O.

160. JANOLO, VIRGILIO M. 180. LITTAUA, FRANKLIN Z.

161. JAVIER, AMADOR L. 181. LOPEZ, MELENCIO L.

162. JAVIER, ROBERTO S. 182. LUMBA, OLIVIA R.

183. MACAISA, BENITO T. 203. MAYUGA, PORTIA E.

184. MACAISA, ERLINDA C. 204. MEDINA, NESTOR M.

185. MAGAT, ELPIDIO 205. MEDINA, ROLANDO S.

186. MAGLAYA, FERNANDO P. 206. MENDAVIA, AVELINO

187. MALABANAN, ALFREDO C. 207. MENDOZA, POTENCIANO G.

188. MALIBIRAN, ROSITA D. 208. MIL, RAY M.

189. MALIJAN, LAZARO V. 209. MIRAVALLES, ANASTACIA L.

190. MALLI, JAVIER M. 210. MONFORTE, EUGENIO, JR. G.

191. MANAHAN, RAMON S. 211. MONTANO, ERNESTO F.

192. MANUEL, ELPIDIO R. 212. MONTERO, JUAN M. III

193. MARAVILLA, GIL B. 213. MORALDE, ESMERALDO B., JR.

194. MARCELO, GIL C. 214. MORALES, CONCHITA D. L

195. MARIÑ;AS, RODOLFO V. 215. MORALES, NESTOR P.

196. MAROKET ,JESUS C. 216. MORALES, SHIRLEY S.

197. MARTIN, NEMENCIO A. 217. MUNAR, JUANITA L.

198. MARTINEZ, ROMEO M. 218. MUÑ;OZ, VICENTE R.

199. MARTINEZ, ROSELINA M. 219. MURILLO, MANUEL M.

200. MATIBAG, ANGELINA G. 220. NACION, PEDRO R.

201. MATUGAS, ERNESTO T. 221. NAGAL, HENRY N.

202. MATUGAS, FRANCISCO T. 222. NAVARRO, HENRY L.

223. NEJAL FREDRICK E. 243. QUINTOS, AMADEO C., JR.

224. NICOLAS, REYNALDO S. 244. QUIRAY, NICOLAS C.

225. NIEVES, RUFINO A. 245. RAMIREZ, ROBERTO P.

226. OLAIVAR, SEBASTIAN T. 246. RANADA, RODRIGO C.

227. OLEGARIO, LEO Q. 247. RARAS, ANTONIO A.

228. ORTEGA, ARLENE R. 248. RAVAL, VIOLETA V.

229. ORTEGA, JESUS R. 249. RAZAL, BETTY R.

230. OSORIO, ABNER S. 250. REGALA, PONCE F.

231. PAPIO FLORENTINO T. II 251. REYES, LIBERATO R.

232. PASCUA, ARNULFO A. 252. REYES, MANUEL E.

233. PASTOR, ROSARIO 253. REYES, NORMA Z.

234. PELAYO, ROSARIO L. 254. REYES, TELESPORO F.

235. PEÑ;A, AIDA C. 255. RIVERA, ROSITA L.

236. PEREZ, ESPERIDION B. 256. ROCES, ROBERTO V.

237. PEREZ, JESUS BAYANI M. 257. ROQUE, TERESITA S.

238. PRE, ISIDRO A. 258. ROSANES, MARILOU M.

239. PRUDENCIADO, EULOGIA S. 259. ROSETE, ADAN I.

240. PUNZALAN, LAMBERTO N. 260. RUANTO, REY CRISTO C., JR.

241. PURA, ARNOLD T. 261. SABLADA, PASCASIO G.

242. QUINONES, EDGARDO I. 262. SALAZAR, SILVERIA S.

263. SALAZAR, VICTORIA A. 283. VASQUEZ, NICANOR B.

264. SALIMBACOD, PERLITA C. 284. VELARDE, EDGARDO C.

265. SALMINGO, LOURDES M. 285. VERA, AVELINO A.

266. SANTIAGO, EMELITA B. 286. VERAME, OSCAR E.

267. SATINA, PORFIRIO C. 287. VIADO, LILIAN T.

268. SEKITO, COSME B JR. 288. VIERNES, NAPOLEON K

269. SIMON, RAMON P. 289. VILLALON, DENNIS A.

270. SINGSON, MELENCIO C. 290. VILLAR, LUZ L.

271. SORIANO, ANGELO L. 291. VILLALUZ, EMELITO V.

272. SORIANO, MAGDALENA R. 292. VILLAR, LUZ L.

273. SUNICO, ABELARDO T . 293. ZATA, ANGELA JR.

274. TABIJE, EMMA B. 294. ACHARON, CRISTETO

275. TAN, RUDY GOROSPE 295. ALBA, RENATO B.

276. TAN, ESTER S. 296. AMON, JULITA C.

277. TAN, JULITA S. 297. AUSTRIA, ERNESTO C.

278. TECSON, BEATRIZ B. 298. CALO, RAYMUNDO M.

279. TOLENTINO, BENIGNO A. 299. CENTENO, BENJAMIN R.

280. TURINGAN, ENRICO T JR. 300. DONATO, ESTELITA P.

281. UMPA, ALI A. 301. DONATO, FELIPE S

282. VALIC, LUCIO E. 302. FLORES, PEDRITO S.


303. GALAROSA, RENATO
304. MALAWI, MAUYAG
305. MONTENEGRO, FRANSISCO M.
306. OMEGA, PETRONILO T.
307. SANTOS, GUILLERMO P.
308. TEMPLO, CELSO
309. VALDERAMA, JAIME B.
310. VALDEZ, NORA M.
Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the
petitioner in G.R. No. 81967; Messrs. Adolfo Caserano Pacifico Lagleva
Julian C. Espiritu, Dennis A. Azarraga Renato de Jesus, Nicasio C. Gamboa,
Mesdames Corazon Rallos Nieves and Felicitacion R. Geluz Messrs.
Leodegario H. Floresca, Subaer Pacasum Ms. Zenaida Lanaria Mr. Jose B.
Ortiz, Ms. Gliceria R. Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin
Rodriguez, Ms. Daligay Bautista, Messrs. Leonardo Jose, Alberto Lontok,
Porfirio Tabino Jose Barredo, Roberto Arnaldo, Ms. Ester Tan, Messrs. Pedro
Bakal, Rosario David, Rodolfo Afuang, Lorenzo Catre,, Ms. Leoncia Catre,
and Roberto Abaca, are the petitioners in G.R. No. 82023; the last 279 16
individuals mentioned are the private respondents in G.R. No. 85310.
As far as the records will likewise reveal, 17 a total of 394 officials and
employees of the Bureau of Customs were given individual notices of
separation. A number supposedly sought reinstatement with the
Reorganization Appeals Board while others went to the Civil Service
Commission. The first thirty-one mentioned above came directly to this Court.
On June 30, 1988, the Civil Service Commission promulgated its ruling
ordering the reinstatement of the 279 employees, the 279 private
respondents in G.R. No. 85310, the dispositive portion of which reads as
follows:
WHEREFORE, it is hereby ordered that:
1. Appellants be immediately reappointed to positions of
comparable or equivalent rank in the Bureau of Customs
without loss of seniority rights;
2. Appellants be paid their back salaries reckoned from the
dates of their illegal termination based on the rates under the
approved new staffing pattern but not lower than their former
salaries.
This action of the Commission should not, however, be interpreted as
an exoneration of the appellants from any accusation of wrongdoing
and, therefore, their reappointments are without prejudice to:
1. Proceeding with investigation of appellants with pending
administrative cases, and where investigations have been
finished, to promptly, render the appropriate decisions;
2. The filing of appropriate administrative complaints against
appellants with derogatory reports or information if evidence
so warrants.
SO ORDERED. 18
On July 15, 1988, Commissioner Mison, represented by the Solicitor General,
filed a motion for reconsideration Acting on the motion, the Civil Service
Commission, on September 20, 1988, denied reconsideration. 19
On October 20, 1988, Commissioner Mison instituted certiorari proceedings
with this Court, docketed, as above-stated, as G.R. No. 85310 of this Court.
On November 16,1988, the Civil Service Commission further disposed the
appeal (from the resolution of the Reorganization Appeals Board) of five more
employees, holding as follows:
WHEREFORE, it is hereby ordered that:
1. Appellants be immediately reappointed to positions of
comparable or equivalent rank in the Bureau of Customs
without loss of seniority rights; and
2. Appellants be paid their back salaries to be reckoned from
the date of their illegal termination based on the rates under
the approved new staffing pattern but not lower than their
former salaries.
 This action of the Commission should not, however, be interpreted as
an exoneration of the herein appellants from any accusation of any
wrongdoing and therefore, their reappointments are without prejudice
to:
1. Proceeding with investigation of appellants with pending
administrative cases, if any, and where investigations have
been finished, to promptly, render the appropriate decisions;
and
2. The filing of appropriate administrative complaints against
appellant with derogatory reports or information, if any, and if
evidence so warrants.
SO ORDERED. 20
On January 6, 1989, Commissioner Mison challenged the Civil Service
Commission's Resolution in this Court; his petitioner has been docketed
herein as G.R. No. 86241. The employees ordered to be reinstated are
Senen Dimaguila, Romeo Arabe, Bemardo Quintong,Gregorio Reyes, and
Romulo Badillo. 21
On June 10, 1988, Republic Act No. 6656, "AN ACT TO PROTECT THE
SECURITY OF TENURE OF CIVIL SERVICE OFFICERS AND EMPLOYEES
IN THE IMPLEMENTATION OF GOVERNMENT REORGANIZATION," 22
was signed into law. Under Section 7, thereof:
Sec. 9. All officers and employees who are found by the Civil Service
Commission to have been separated in violation of the provisions of
this Act, shall be ordered reinstated or reappointed as the case may
be without loss of seniority and shall be entitled to full pay for the
period of separation. Unless also separated for cause, all officers and
employees, including casuals and temporary employees, who have
been separated pursuant to reorganization shall, if entitled thereto, be
paid the appropriate separation pay and retirement and other benefits
under existing laws within ninety (90) days from the date of the
effectivity of their separation or from the date of the receipt of the
resolution of their appeals as the case may be: Provided, That
application for clearance has been filed and no action thereon has
been made by the corresponding department or agency. Those who
are not entitled to said benefits shall be paid a separation gratuity in
the amount equivalent to one (1) month salary for every year of
service. Such separation pay and retirement benefits shall have
priority of payment out of the savings of the department or agency
concerned. 23
On June 23, 1988, Benedicto Amasa and William Dionisio, customs
examiners appointed by Commissioner Mison pursuant to the ostensible
reorganization subject of this controversy, petitioned the Court to contest the
validity of the statute. The petition is docketed as G.R. No. 83737.
On October 21, 1988, thirty-five more Customs officials whom the Civil
Service Commission had ordered reinstated by its June 30,1988 Resolution
filed their own petition to compel the Commissioner of Customs to comply
with the said Resolution. The petition is docketed as G.R. No. 85335.
On November 29, 1988, we resolved to consolidate all seven petitions.
On the same date, we resolved to set the matter for hearing on January 12,
1989. At the said hearing, the parties, represented by their counsels (a)
retired Justice Ruperto Martin; (b) retired Justice Lino Patajo. (c) former Dean
Froilan Bacungan (d) Atty. Lester Escobar (e) Atty. Faustino Tugade and (f)
Atty. Alexander Padilla, presented their arguments. Solicitor General
Francisco Chavez argued on behalf of the Commissioner of Customs (except
in G.R. 85335, in which he represented the Bureau of Customs and the Civil
Service Commission).lâwphî1.ñèt Former Senator Ambrosio Padilla also
appeared and argued as amicus curiae Thereafter, we resolved to require the
parties to submit their respective memoranda which they did in due time.
There is no question that the administration may validly carry out a
government reorganization — insofar as these cases are concerned, the
reorganization of the Bureau of Customs — by mandate not only of the
Provisional Constitution, supra, but also of the various Executive Orders
decreed by the Chief Executive in her capacity as sole lawmaking authority
under the 1986-1987 revolutionary government. It should also be noted that
under the present Constitution, there is a recognition, albeit implied, that a
government reorganization may be legitimately undertaken, subject to certain
conditions. 24
The Court understands that the parties are agreed on the validity of a
reorganization per se the only question being, as shall be later seen: What is
the nature and extent of this government reorganization?
The Court disregards the questions raised as to procedure, failure to exhaust
administrative remedies, the standing of certain parties to sue, 25 and other
technical objections, for two reasons, "[b]ecause of the demands of public
interest, including the need for stability in the public service,"26 and because
of the serious implications of these cases on the administration of the
Philippine civil service and the rights of public servants.
The urgings in G.R. Nos. 85335 and 85310, that the Civil Service
Commission's Resolution dated June 30, 1988 had attained a character of
finality for failure of Commissioner Mison to apply for judicial review or ask for
reconsideration seasonalbly under Presidential Decree No. 807, 27 or under
Republic Act No. 6656, 28 or under the Constitution, 29 are likewise rejected.
The records show that the Bureau of Customs had until July 15, 1988 to ask
for reconsideration or come to this Court pursuant to Section 39 of
Presidential Decree No. 807. The records likewise show that the Solicitor
General filed a motion for reconsideration on July 15, 1988. 30 The Civil
Service Commission issued its Resolution denying reconsideration on
September 20, 1988; a copy of this Resolution was received by the Bureau
on September 23, 1988.31 Hence the Bureau had until October 23, 1988 to
elevate the matter on certiorari to this Court.32 Since the Bureau's petition was
filed on October 20, 1988, it was filed on time.
We reject, finally, contentions that the Bureau's petition (in G.R. 85310) raises
no jurisdictional questions, and is therefore bereft of any basis as a petition
for certiorari under Rule 65 of the Rules of Court. 33 We find that the questions
raised in Commissioner Mison's petition (in G.R. 85310) are, indeed, proper
for certiorari, if by "jurisdictional questions" we mean questions having to do
with "an indifferent disregard of the law, arbitrariness and caprice, or omission
to weigh pertinent considerations, a decision arrived at without rational
deliberation, 34 as distinguished from questions that require "digging into the
merits and unearthing errors of judgment 35 which is the office, on the other
hand, of review under Rule 45 of the said Rules. What cannot be denied is
the fact that the act of the Civil Service Commission of reinstating hundreds of
Customs employees Commissioner Mison had separated, has implications
not only on the entire reorganization process decreed no less than by the
Provisional Constitution, but on the Philippine bureaucracy in general; these
implications are of such a magnitude that it cannot be said that — assuming
that the Civil Service Commission erred — the Commission committed a plain
"error of judgment" that Aratuc says cannot be corrected by the extraordinary
remedy of certiorari or any special civil action. We reaffirm the teaching of
Aratuc — as regards recourse to this Court with respect to rulings of the Civil
Service Commission — which is that judgments of the Commission may be
brought to the Supreme Court through certiorari alone, under Rule 65 of the
Rules of Court.
In Aratuc we declared:
It is once evident from these constitutional and statutory modifications
that there is a definite tendency to enhance and invigorate the role of
the Commission on Elections as the independent constitutional body
charged with the safeguarding of free, peaceful and honest elections.
The framers of the new Constitution must be presumed to have
definite knowledge of what it means to make the decisions, orders
and rulings of the Commission "subject to review by the Supreme
Court'. And since instead of maintaining that provision intact, it
ordained that the Commission's actuations be instead 'brought to the
Supreme Court on certiorari", We cannot insist that there was no
intent to change the nature of the remedy, considering that the limited
scope of certiorari, compared to a review, is well known in remedial
law.36
We observe no fundamental difference between the Commission on Elections
and the Civil Service Commission (or the Commission on Audit for that
matter) in terms of the constitutional intent to leave the constitutional bodies
alone in the enforcement of laws relative to elections, with respect to the
former, and the civil service, with respect to the latter (or the audit of
government accounts, with respect to the Commission on Audit). As the poll
body is the "sole judge" 37 of all election cases, so is the Civil Service
Commission the single arbiter of all controversies pertaining to the civil
service.
It should also be noted that under the new Constitution, as under the 1973
Charter, "any decision, order, or ruling of each Commission may be brought
to the Supreme Court on certiorari," 38 which, as Aratuc tells us, "technically
connotes something less than saying that the same 'shall be subject to review
by the Supreme Court,' " 39 which in turn suggests an appeal by petition for
review under Rule 45. Therefore, our jurisdiction over cases emanating from
the Civil Service Commission is limited to complaints of lack or excess of
jurisdiction or grave abuse of discretion tantamount to lack or excess of
jurisdiction, complaints that justify certiorari under Rule 65.
While Republic Act No. 6656 states that judgments of the Commission are
"final and executory"40 and hence, unappealable, under Rule 65, certiorari
precisely lies in the absence of an appeal. 41
Accordingly, we accept Commissioner Mison petition (G.R. No. 85310) which
clearly charges the Civil Service Commission with grave abuse of discretion,
a proper subject of certiorari, although it may not have so stated in explicit
terms.
As to charges that the said petition has been filed out of time, we reiterate
that it has been filed seasonably. It is to be stressed that the Solicitor General
had thirty days from September 23, 1988 (the date the Resolution, dated
September 20,1988, of the Civil Service Commission, denying
reconsideration, was received) to commence the instant certiorari
proceedings. As we stated, under the Constitution, an aggrieved party has
thirty days within which to challenge "any decision, order, or ruling" 42 of the
Commission. To say that the period should be counted from the Solicitor's
receipt of the main Resolution, dated June 30, 1988, is to say that he should
not have asked for reconsideration But to say that is to deny him the right to
contest (by a motion for reconsideration) any ruling, other than the main
decision, when, precisely, the Constitution gives him such a right. That is also
to place him at a "no-win" situation because if he did not move for a
reconsideration, he would have been faulted for demanding certiorari too
early, under the general rule that a motion for reconsideration should preface
a resort to a special civil action. 43 Hence, we must reckon the thirty-day
period from receipt of the order of denial.
We come to the merits of these cases.
G.R. Nos. 81954, 81967, 82023, and 85335:
The Case for the Employees
The petitioner in G.R. No. 81954, Cesar Dario was one of the Deputy
Commissioners of the Bureau of Customs until his relief on orders of
Commissioner Mison on January 26, 1988. In essence, he questions the
legality of his dismiss, which he alleges was upon the authority of Section 59
of Executive Order No. 127, supra, hereinbelow reproduced as follows:
SEC. 59. New Structure and Pattern. Upon approval of this Executive
Order, the officers and employees of the Ministry shall, in a holdover
capacity, continue to perform their respective duties and
responsibilities and receive the corresponding salaries and benefits
unless in the meantime they are separated from government service
pursuant to Executive Order No. 17 (1986) or Article III of the
Freedom Constitution.
The new position structure and staffing pattern of the Ministry shall be
approved and prescribed by the Minister within one hundred twenty
(120) days from the approval of this Executive Order and the
authorized positions created hereunder shall be filled with regular
appointments by him or by the President, as the case may be. Those
incumbents whose positions are not included therein or who are not
reappointed shall be deemed separated from the service. Those
separated from the service shall receive the retirement benefits to
which they may be entitled under existing laws, rules and regulations.
Otherwise, they shall be paid the equivalent of one month basic
salary for every year of service, or the equivalent nearest fraction
thereof favorable to them on the basis of highest salary received but
in no case shall such payment exceed the equivalent of 12 months
salary.
No court or administrative body shall issue any writ of preliminary
injunction or restraining order to enjoin the separation/replacement of
any officer or employee effected under this Executive Order. 44
a provision he claims the Commissioner could not have legally invoked. He
avers that he could not have been legally deemed to be an "[incumbent]
whose [position] [is] not included therein or who [is] not reappointed" 45 to
justify his separation from the service. He contends that neither the Executive
Order (under the second paragraph of the section) nor the staffing pattern
proposed by the Secretary of Finance 46 abolished the office of Deputy
Commissioner of Customs, but, rather, increased it to three. 47 Nor can it be
said, so he further maintains, that he had not been "reappointed" 48 (under the
second paragraph of the section) because "[[r]eappointment therein
presupposes that the position to which it refers is a new one in lieu of that
which has been abolished or although an existing one, has absorbed that
which has been abolished." 49 He claims, finally, that under the Provisional
Constitution, the power to dismiss public officials without cause ended on
February 25, 1987,50 and that thereafter, public officials enjoyed security of
tenure under the provisions of the 1987 Constitution. 51
Like Dario Vicente Feria, the petitioner in G.R. No. 81967, was a Deputy
Commissioner at the Bureau until his separation directed by Commissioner
Mison. And like Dario he claims that under the 1987 Constitution, he has
acquired security of tenure and that he cannot be said to be covered by
Section 59 of Executive Order No. 127, having been appointed on April 22,
1986 — during the effectivity of the Provisional Constitution. He adds that
under Executive Order No. 39, "ENLARGING THE POWERS AND
FUNCTIONS OF THE COMMISSIONER OF CUSTOMS,"52 the
Commissioner of Customs has the power "[t]o appoint all Bureau personnel,
except those appointed by the President," 53 and that his position, which is
that of a Presidential appointee, is beyond the control of Commissioner Mison
for purposes of reorganization.
The petitioners in G.R. No. 82023, collectors and examiners in venous ports
of the Philippines, say, on the other hand, that the purpose of reorganization
is to end corruption at the Bureau of Customs and that since there is no
finding that they are guilty of corruption, they cannot be validly dismissed from
the service.
The Case for Commissioner Mison
In his comments, the Commissioner relies on this Court's resolution in Jose v.
Arroyo54 in which the following statement appears in the last paragraph
thereof:
 The contention of petitioner that Executive Order No. 127 is violative
of the provision of the 1987 Constitution guaranteeing career civil
service employees security of tenure overlooks the provisions of
Section 16, Article XVIII (Transitory Provisions) which explicitly
authorize the removal of career civil service employees "not for cause
but as a result of the reorganization pursuant to Proclamation No. 3
dated March 25, 1986 and the reorganization following the ratification
of this Constitution." By virtue of said provision, the reorganization of
the Bureau of Customs under Executive Order No. 127 may continue
even after the ratification of the Constitution, and career civil service
employees may be separated from the service without cause as a
result of such reorganization.55
For this reason, Mison posits, claims of violation of security of tenure are
allegedly no defense. He further states that the deadline prescribed by the
Provisional Constitution (February 25, 1987) has been superseded by the
1987 Constitution, specifically, the transitory provisions thereof, 56 which
allows a reorganization thereafter (after February 25, 1987) as this very Court
has so declared in Jose v. Arroyo. Mison submits that contrary to the
employees' argument, Section 59 of Executive Order No. 127 is applicable (in
particular, to Dario and Feria in the sense that retention in the Bureau, under
the Executive Order, depends on either retention of the position in the new
staffing pattern or reappointment of the incumbent, and since the dismissed
employees had not been reappointed, they had been considered legally
separated. Moreover, Mison proffers that under Section 59 incumbents are
considered on holdover status, "which means that all those positions were
considered vacant." 57 The Solicitor General denies the applicability of Palma-
Fernandez v. De la Paz 58 because that case supposedly involved a mere
transfer and not a separation. He rejects, finally, the force and effect of
Executive Order Nos. 17 and 39 for the reason that Executive Order No. 17,
which was meant to implement the Provisional Constitution, 59 had ceased to
have force and effect upon the ratification of the 1987 Constitution, and that,
under Executive Order No. 39, the dismissals contemplated were "for cause"
while the separations now under question were "not for cause" and were a
result of government reorganize organization decreed by Executive Order No.
127. Anent Republic Act No. 6656, he expresses doubts on the
constitutionality of the grant of retroactivity therein (as regards the
reinforcement of security of tenure) since the new Constitution clearly allows
reorganization after its effectivity.
G.R. Nos. 85310 and 86241
The Position of Commissioner Mison
Commissioner's twin petitions are direct challenges to three rulings of the
Civil Service Commission: (1) the Resolution, dated June 30, 1988,
reinstating the 265 customs employees above-stated; (2) the Resolution,
dated September 20, 1988, denying reconsideration; and (3) the Resolution,
dated November 16, 1988, reinstating five employees. The Commissioner's
arguments are as follows:
1. The ongoing government reorganization is in the nature of a "progressive"
60
reorganization "impelled by the need to overhaul the entire government
bureaucracy" 61 following the people power revolution of 1986;
2. There was faithful compliance by the Bureau of the various guidelines
issued by the President, in particular, as to deliberation, and selection of
personnel for appointment under the new staffing pattern;
3. The separated employees have been, under Section 59 of Executive Order
No. 127, on mere holdover standing, "which means that all positions are
declared vacant;" 62
4. Jose v. Arroyo has declared the validity of Executive Order No. 127 under
the transitory provisions of the 1987 Constitution;
5. Republic Act No. 6656 is of doubtful constitutionality.
The Ruling of the Civil Service Commission
The position of the Civil Service Commission is as follows:
1. Reorganizations occur where there has been a reduction in personnel or
redundancy of functions; there is no showing that the reorganization in
question has been carried out for either purpose — on the contrary, the
dismissals now disputed were carried out by mere service of notices;
2. The current Customs reorganization has not been made according to
Malacañ;ang guidelines; information on file with the Commission shows that
Commissioner Mison has been appointing unqualified personnel;
3. Jose v. Arroyo, in validating Executive Order No. 127, did not countenance
illegal removals;
4. Republic Act No. 6656 protects security of tenure in the course of
reorganizations.
The Court's ruling
Reorganization, Fundamental Principles of. —
I.
The core provision of law involved is Section 16 Article XVIII, of the 1987
Constitution. We quote:
Sec. 16. Career civil service employees separated from the service
not for cause but as a result of the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986 and the reorganization
following the ratification of this Constitution shag be entitled to
appropriate separation pay and to retirement and other benefits
accruing to them under the laws of general application in force at the
time of their separation. In lieul thereof, at the option of the
employees, they may be considered for employment in the
Government or in any of its subdivisions, instrumentalities, or
agencies, including government-owned or controlled corporations
and their subsidiaries. This provision also applies to career officers
whose resignation, tendered in line with the existing policy, had been
accepted. 63
The Court considers the above provision critical for two reasons: (1) It is the
only provision — in so far as it mentions removals not for cause — that would
arguably support the challenged dismissals by mere notice, and (2) It is the
single existing law on reorganization after the ratification of the 1987 Charter,
except Republic Act No. 6656, which came much later, on June 10, 1988.
[Nota been Executive Orders No. 116 (covering the Ministry of Agriculture &
Food), 117 (Ministry of Education, Culture & Sports), 119 (Health), 120
(Tourism), 123 (Social Welfare & Development), 124 (Public Works &
Highways), 125 transportation & Communications), 126 (Labor &
Employment), 127 (Finance), 128 (Science & Technology), 129 (Agrarian
Reform), 131 (Natural Resources), 132 (Foreign Affairs), and 133 (Trade &
Industry) were all promulgated on January 30,1987, prior to the adoption of
the Constitution on February 2, 1987].64
It is also to be observed that unlike the grants of power to effect
reorganizations under the past Constitutions, the above provision comes as a
mere recognition of the right of the Government to reorganize its offices,
bureaus, and instrumentalities. Under Section 4, Article XVI, of the 1935
Constitution:
Section 4. All officers and employees in the existing Government of
the Philippine Islands shall continue in office until the Congress shall
provide otherwise, but all officers whose appointments are by this
Constitution vested in the President shall vacate their respective
office(s) upon the appointment and qualification of their successors, if
such appointment is made within a period of one year from the date
of the inauguration of the Commonwealth of the Philippines. 65
Under Section 9, Article XVII, of the 1973 Charter:
Section 9. All officials and employees in the existing Government of
the Republic of the Philippines shall continue in office until otherwise
provided by law or decreed by the incumbent President of the
Philippines, but all officials whose appointments are by this
Constitution vested in the Prime Minister shall vacate their respective
offices upon the appointment and qualification of their successors. 66
The Freedom Constitution is, as earlier seen, couched in similar language:
SECTION 2. All elective and appointive officials and employees
under the 1973 Constitution shall continue in office until otherwise
provided by proclamation or executive order or upon the appointment
and qualification of their successors, if such is made within a period
of one year from February 25, 1986.67
Other than references to "reorganization following the ratification of this
Constitution," there is no provision for "automatic" vacancies under the 1987
Constitution.
Invariably, transition periods are characterized by provisions for "automatic"
vacancies. They are dictated by the need to hasten the passage from the old
to the new Constitution free from the "fetters" of due process and security of
tenure.
At this point, we must distinguish removals from separations arising from
abolition of office (not by virtue of the Constitution) as a result of
reorganization carried out by reason of economy or to remove redundancy of
functions. In the latter case, the Government is obliged to prove good faith. 68
In case of removals undertaken to comply with clear and explicit constitutional
mandates, the Government is not hard put to prove anything, plainly and
simply because the Constitution allows it.
Evidently, the question is whether or not Section 16 of Article XVIII of the
1987 Constitution is a grant of a license upon the Government to remove
career public officials it could have validly done under an "automatic"
vacancy-authority and to remove them without rhyme or reason.
As we have seen, since 1935, transition periods have been characterized by
provisions for "automatic" vacancies. We take the silence of the 1987
Constitution on this matter as a restraint upon the Government to dismiss
public servants at a moment's notice.
What is, indeed, apparent is the fact that if the present Charter envisioned an
"automatic" vacancy, it should have said so in clearer terms, as its 1935,
1973, and 1986 counterparts had so stated.
The constitutional "lapse" means either one of two things: (1) The
Constitution meant to continue the reorganization under the prior Charter (of
the Revolutionary Government), in the sense that the latter provides for
"automatic" vacancies, or (2) It meant to put a stop to those 'automatic"
vacancies. By itself, however, it is ambiguous, referring as it does to two
stages of reorganization — the first, to its conferment or authorization under
Proclamation No. 3 (Freedom Charter) and the second, to its implementation
on its effectivity date (February 2, 1987).lâwphî1.ñèt But as we asserted, if
the intent of Section 16 of Article XVIII of the 1987 Constitution were to
extend the effects of reorganize tion under the Freedom Constitution, it
should have said so in clear terms. It is illogical why it should talk of two
phases of reorganization when it could have simply acknowledged the
continuing effect of the first reorganization.
Second, plainly the concern of Section 16 is to ensure compensation for
victims" of constitutional revamps — whether under the Freedom or existing
Constitution — and only secondarily and impliedly, to allow reorganization.
We turn to the records of the Constitutional Commission:
INQUIRY OF MR. PADILLA
On the query of Mr. Padilla whether there is a need for a specific
reference to Proclamation No. 3 and not merely state "result of the
reorganization following the ratification of this Constitution', Mr.
Suarez, on behalf of the Committee, replied that it is necessary,
inasmuch as there are two stages of reorganization covered by the
Section.
Mr. Padilla pointed out that since the proposal of the Commission on
Government Reorganization have not been implemented yet, it would
be better to use the phrase "reorganization before or after the
ratification of the Constitution' to simplify the Section. Mr. Suarez
instead suggested the phrase "as a result of the reorganization
effected before or after the ratification of the Constitution' on the
understanding that the provision would apply to employees
terminated because of the reorganization pursuant to Proclamation
No. 3 and even those affected by the reorganization during the
Marcos regime. Additionally, Mr. Suarez pointed out that it is also for
this reason that the Committee specified the two Constitutions the
Freedom Constitution — and the 1986 [1987] Constitution. 69
Simply, the provision benefits career civil service employees separated from
the service. And the separation contemplated must be due to or the result of
(1) the reorganization pursuant to Proclamation No. 3 dated March 25, 1986,
(2) the reorganization from February 2, 1987, and (3) the resignations of
career officers tendered in line with the existing policy and which resignations
have been accepted. The phrase "not for cause" is clearly and primarily
exclusionary, to exclude those career civil service employees separated "for
cause." In other words, in order to be entitled to the benefits granted under
Section 16 of Article XVIII of the Constitution of 1987, two requisites, one
negative and the other positive, must concur, to wit:
1. the separation must not be for cause, and
2. the separation must be due to any of the three situations
mentioned above.
By its terms, the authority to remove public officials under the Provisional
Constitution ended on February 25, 1987, advanced by jurisprudence to
February 2, 1987. 70 It Can only mean, then, that whatever reorganization is
taking place is upon the authority of the present Charter, and necessarily,
upon the mantle of its provisions and safeguards. Hence, it can not be
legitimately stated that we are merely continuing what the revolutionary
Constitution of the Revolutionary Government had started. We are through
with reorganization under the Freedom Constitution — the first stage. We are
on the second stage — that inferred from the provisions of Section 16 of
Article XVIII of the permanent basic document.
This is confirmed not only by the deliberations of the Constitutional
Commission, supra, but is apparent from the Charter's own words. It also
warrants our holding in Esguerra and Palma-Fernandez, in which we
categorically declared that after February 2, 1987, incumbent officials and
employees have acquired security of tenure, which is not a deterrent against
separation by reorganization under the quondam fundamental law.
Finally, there is the concern of the State to ensure that this reorganization is
no "purge" like the execrated reorganizations under martial rule. And, of
course, we also have the democratic character of the Charter itself.
Commissioner Mison would have had a point, insofar as he contends that the
reorganization is open-ended ("progressive"), had it been a reorganization
under the revolutionary authority, specifically of the Provisional Constitution.
For then, the power to remove government employees would have been truly
wide ranging and limitless, not only because Proclamation No. 3 permitted it,
but because of the nature of revolutionary authority itself, its totalitarian
tendencies, and the monopoly of power in the men and women who wield it.
What must be understood, however, is that notwithstanding her immense
revolutionary powers, the President was, nevertheless, magnanimous in her
rule. This is apparent from Executive Order No. 17, which established
safeguards against the strong arm and ruthless propensity that accompanies
reorganizations — notwithstanding the fact that removals arising therefrom
were "not for cause," and in spite of the fact that such removals would have
been valid and unquestionable. Despite that, the Chief Executive saw, as we
said, the "unnecessary anxiety and demoralization" in the government rank
and file that reorganization was causing, and prescribed guidelines for
personnel action. Specifically, she said on May 28, 1986:
WHEREAS, in order to obviate unnecessary anxiety and
demoralization among the deserving officials and employees,
particularly in the career civil service, it is necessary to prescribe the
rules and regulations for implementing the said constitutional
provision to protect career civil servants whose qualifications and
performance meet the standards of service demanded by the New
Government, and to ensure that only those found corrupt, inefficient
and undeserving are separated from the government service; 71
Noteworthy is the injunction embodied in the Executive Order that dismissals
should be made on the basis of findings of inefficiency, graft, and unfitness to
render public service.*
The President's Memorandum of October 14, 1987 should furthermore be
considered. We quote, in part:
Further to the Memorandum dated October 2, 1987 on the same
subject, I have ordered that there will be no further layoffs this year of
personnel as a result of the government reorganization. 72
Assuming, then, that this reorganization allows removals "not for cause" in a
manner that would have been permissible in a revolutionary setting as
Commissioner Mison so purports, it would seem that the Commissioner
would have been powerless, in any event, to order dismissals at the Customs
Bureau left and right. Hence, even if we accepted his "progressive"
reorganization theory, he would still have to come to terms with the Chief
Executive's subsequent directives moderating the revolutionary authority's
plenary power to separate government officials and employees.
Reorganization under the 1987 Constitution, Nature, Extent, and Limitations
of; Jose v. Arroyo, clarified. —
The controversy seems to be that we have, ourselves, supposedly extended
the effects of government reorganization under the Provisional Constitution to
the regime of the 1987 Constitution. Jose v. Arroyo73 is said to be the
authority for this argument. Evidently, if Arroyo indeed so ruled, Arroyo would
be inconsistent with the earlier pronouncement of Esguerra and the later
holding of Palma-Fernandez. The question, however, is: Did Arroyo, in fact,
extend the effects of reorganization under the revolutionary Charter to the era
of the new Constitution?
There are a few points about Arroyo that have to be explained. First, the
opinion expressed therein that "[b]y virtue of said provision the reorganization
of the Bureau of Customs under Executive Order No. 127 may continue even
after the ratification of this constitution and career civil service employees
may be separated from the service without cause as a result of such
reorganization" 74 is in the nature of an obiter dictum. We dismissed Jose's
petition 75 primarily because it was "clearly premature, speculative, and purely
anticipatory, based merely on newspaper reports which do not show any
direct or threatened injury," 76 it appearing that the reorganization of the
Bureau of Customs had not been, then, set in motion. Jose therefore had no
cause for complaint, which was enough basis to dismiss the petition. The
remark anent separation "without cause" was therefore not necessary for the
disposition of the case. In Morales v. Parades,77 it was held that an obiter
dictum "lacks the force of an adjudication and should not ordinarily be
regarded as such."78
Secondly, Arroyo is an unsigned resolution while Palma Fernandez is a full-
blown decision, although both are en banc cases. While a resolution of the
Court is no less forceful than a decision, the latter has a special weight.
Thirdly, Palma-Fernandez v. De la Paz comes as a later doctrine. (Jose v.
Arroyo was promulgated on August 11, 1987 while Palma-Fernandez was
decided on August 31, 1987.) It is well-established that a later judgment
supersedes a prior one in case of an inconsistency.
As we have suggested, the transitory provisions of the 1987 Constitution
allude to two stages of the reorganization, the first stage being the
reorganization under Proclamation No. 3 — which had already been
consummated — the second stage being that adverted to in the transitory
provisions themselves — which is underway. Hence, when we spoke, in
Arroyo, of reorganization after the effectivity of the new Constitution, we
referred to the second stage of the reorganization. Accordingly, we cannot be
said to have carried over reorganization under the Freedom Constitution to its
1987 counterpart.
Finally, Arroyo is not necessarily incompatible with Palma-Fernandez (or
Esguerra).
As we have demonstrated, reorganization under the aegis of the 1987
Constitution is not as stern as reorganization under the prior Charter.
Whereas the latter, sans the President's subsequently imposed constraints,
envisioned a purgation, the same cannot be said of the reorganization
inferred under the new Constitution because, precisely, the new Constitution
seeks to usher in a democratic regime. But even if we concede ex gratia
argumenti that Section 16 is an exception to due process and no-
removal-"except for cause provided by law" principles enshrined in the very
same 1987 Constitution, 79 which may possibly justify removals "not for
cause," there is no contradiction in terms here because, while the former
Constitution left the axe to fall where it might, the present organic act requires
that removals "not for cause" must be as a result of reorganization. As we
observed, the Constitution does not provide for "automatic" vacancies. It must
also pass the test of good faith — a test not obviously required under the
revolutionary government formerly prevailing, but a test well-established in
democratic societies and in this government under a democratic Charter.
When, therefore, Arroyo permitted a reorganization under Executive Order
No. 127 after the ratification of the 1987 Constitution, Arroyo permitted a
reorganization provided that it is done in good faith. Otherwise, security of
tenure would be an insuperable implement. 80
Reorganizations in this jurisdiction have been regarded as valid provided they
are pursued in good faith. 81 As a general rule, a reorganization is carried out
in "good faith" if it is for the purpose of economy or to make bureaucracy
more efficient. In that event, no dismissal (in case of a dismissal) or
separation actually occurs because the position itself ceases to exist. And in
that case, security of tenure would not be a Chinese wall. Be that as it may, if
the "abolition," which is nothing else but a separation or removal, is done for
political reasons or purposely to defeat sty of tenure, or otherwise not in good
faith, no valid "abolition' takes place and whatever "abolition' is done, is void
ab initio. There is an invalid "abolition" as where there is merely a change of
nomenclature of positions, 82 or where claims of economy are belied by the
existence of ample funds. 83
It is to be stressed that by predisposing a reorganization to the yardstick of
good faith, we are not, as a consequence, imposing a "cause" for
restructuring. Retrenchment in the course of a reorganization in good faith is
still removal "not for cause," if by "cause" we refer to "grounds" or conditions
that call for disciplinary action.**
Good faith, as a component of a reorganization under a constitutional regime,
is judged from the facts of each case. However, under Republic Act No. 6656,
we are told:
SEC. 2. No officer or employee in the career service shall be
removed except for a valid cause and after due notice and hearing. A
valid cause for removal exists when, pursuant to a bona fide
reorganization, a position has been abolished or rendered redundant
or there is a need to merge, divide, or consolidate positions in order
to meet the exigencies of the service, or other lawful causes allowed
by the Civil Service Law. The existence of any or some of the
following circumstances may be considered as evidence of bad faith
in the removals made as a result of reorganization, giving rise to a
claim for reinstatement or reappointment by an aggrieved party: (a)
Where there is a significant increase in the number of positions in the
new staffing pattern of the department or agency concerned; (b)
Where an office is abolished and another performing substantially the
same functions is created; (c) Where incumbents are replaced by
those less qualified in terms of status of appointment, performance
and merit; (d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified offices perform
substantially the same functions as the original offices; (e) Where the
removal violates the order of separation provided in Section 3 hereof.
84
It is in light hereof that we take up questions about Commissioner Mison's
good faith, or lack of it.
Reorganization of the Bureau of Customs,
Lack of Good Faith in. —
The Court finds that after February 2, 1987 no perceptible restructuring of the
Customs hierarchy — except for the change of personnel — has occurred,
which would have justified (an things being equal) the contested dismisses.
The contention that the staffing pattern at the Bureau (which would have
furnished a justification for a personnel movement) is the same s pattern
prescribed by Section 34 of Executive Order No. 127 already prevailing when
Commissioner Mison took over the Customs helm, has not been successfully
contradicted 85 There is no showing that legitimate structural changes have
been made — or a reorganization actually undertaken, for that matter — at
the Bureau since Commissioner Mison assumed office, which would have
validly prompted him to hire and fire employees. There can therefore be no
actual reorganization to speak of, in the sense, say, of reduction of personnel,
consolidation of offices, or abolition thereof by reason of economy or
redundancy of functions, but a revamp of personnel pure and simple.
The records indeed show that Commissioner Mison separated about 394
Customs personnel but replaced them with 522 as of August 18, 1988. 86 This
betrays a clear intent to "pack" the Bureau of Customs. He did so,
furthermore, in defiance of the President's directive to halt further layoffs as a
consequence of reorganization. 87 Finally, he was aware that layoffs should
observe the procedure laid down by Executive Order No. 17.
We are not, of course, striking down Executive Order No. 127 for repugnancy
to the Constitution. While the act is valid, still and all, the means with which it
was implemented is not. 88
Executive Order No. 127, Specific Case of. —
With respect to Executive Order No. 127, Commissioner Mison submits that
under Section 59 thereof, "[t]hose incumbents whose positions are not
included therein or who are not reappointed shall be deemed separated from
the service." He submits that because the 394 removed personnel have not
been "reappointed," they are considered terminated. To begin with, the
Commissioner's appointing power is subject to the provisions of Executive
Order No. 39. Under Executive Order No. 39, the Commissioner of Customs
may "appoint all Bureau personnel, except those appointed by the President."
89
Accordingly, with respect to Deputy Commissioners Cesar Dario and Vicente
Feria, Jr., Commissioner Mison could not have validly terminated them, they
being Presidential appointees.
Secondly, and as we have asserted, Section 59 has been rendered
inoperative according to our holding in Palma-Fernandez.
That Customs employees, under Section 59 of Executive Order No. 127 had
been on a mere holdover status cannot mean that the positions held by them
had become vacant. In Palma-Fernandez, we said in no uncertain terms:
The argument that, on the basis of this provision, petitioner's term of
office ended on 30 January 1987 and that she continued in the
performance of her duties merely in a hold over capacity and could
be transferred to another position without violating any of her legal
rights, is untenable. The occupancy of a position in a hold-over
capacity was conceived to facilitate reorganization and would have
lapsed on 25 February 1987 (under the Provisional Constitution), but
advanced to February 2, 1987 when the 1987 Constitution became
effective (De Leon. et al., vs. Hon. Benjamin B. Esquerra, et. al., G.R.
No. 78059, 31 August 1987). After the said date the provisions of the
latter on security of tenure govern. 90
It should be seen, finally, that we are not barring Commissioner Mison from
carrying out a reorganization under the transitory provisions of the 1987
Constitution. But such a reorganization should be subject to the criterion of
good faith.
Resume. —
In resume, we restate as follows:
1. The President could have validly removed government employees, elected
or appointed, without cause but only before the effectivity of the 1987
Constitution on February 2, 1987 (De Leon v. Esguerra, supra; Palma-
Fernandez vs. De la Paz, supra); in this connection, Section 59 (on non-
reappointment of incumbents) of Executive Order No. 127 cannot be a basis
for termination;
2. In such a case, dismissed employees shall be paid separation and
retirement benefits or upon their option be given reemployment opportunities
(CONST. [1987], art. XVIII, sec. 16; Rep. Act No. 6656, sec. 9);
3. From February 2, 1987, the State does not lose the right to reorganize the
Government resulting in the separation of career civil service employees
[CONST. (1987), supra] provided, that such a reorganization is made in good
faith. (Rep. Act No. 6656, supra.)
G.R. No. 83737
This disposition also resolves G.R. No. 83737. As we have indicated, G.R.
No. 83737 is a challenge to the validity of Republic Act No. 6656. In brief, it is
argued that the Act, insofar as it strengthens security of tenure 91 and as far
as it provides for a retroactive effect, 92 runs counter to the transitory
provisions of the new Constitution on removals not for cause.
It can be seen that the Act, insofar as it provides for reinstatament of
employees separated without "a valid cause and after due notice and
hearing" 93 is not contrary to the transitory provisions of the new Constitution.
The Court reiterates that although the Charter's transitory provisions mention
separations "not for cause," separations thereunder must nevertheless be on
account of a valid reorganization and which do not come about automatically.
Otherwise, security of tenure may be invoked. Moreover, it can be seen that
the statute itself recognizes removals without cause. However, it also
acknowledges the possibility of the leadership using the artifice of
reorganization to frustrate security of tenure. For this reason, it has installed
safeguards. There is nothing unconstitutional about the Act.
We recognize the injury Commissioner Mison's replacements would sustain.
We also commisserate with them. But our concern is the greater wrong
inflicted on the dismissed employees on account of their regal separation
from the civil service.
WHEREFORE, THE RESOLUTIONS OF THE CIVIL SERVICE
COMMISSION, DATED JUNE 30, 1988, SEPTEMBER 20, 1988,
NOVEMBER 16, 1988, INVOLVED IN G.R. NOS. 85310, 85335, AND 86241,
AND MAY 8, 1989, INVOLVED IN G.R. NO. 85310, ARE AFFIRMED.
THE PETITIONS IN G.R. NOS. 81954, 81967, 82023, AND 85335 ARE
GRANTED. THE PETITIONS IN G.R. NOS. 83737, 85310 AND 86241 ARE
DISMISSED.
THE COMMISSIONER OF CUSTOMS IS ORDERED TO REINSTATE THE
EMPLOYEES SEPARATED AS A RESULT OF HIS NOTICES DATED
JANUARY 26, 1988.
THE EMPLOYEES WHOM COMMISSIONER MISON MAY HAVE
APPOINTED AS REPLACEMENTS ARE ORDERED TO VACATE THEIR
POSTS SUBJECT TO THE PAYMENT OF WHATEVER BENEFITS THAT
MAY BE PROVIDED BY LAW.
NO COSTS.
IT IS SO ORDERED.
Gutierrez, Jr., Paras, Gancayco, Bidin, Cortes, Griñ;o-Aquino and Medialdea,
JJ., concur.
Padilla, J., took no part.
 
Separate Opinions
CRUZ, J., concurring:
I concur with the majority view so ably presented by Mr. Justice Abraham F.
Sarmiento. While additional comments may seem superfluous in view of the
exhaustiveness of his ponencia, I nevertheless offer the following brief
observations for whatever they may be worth.
Emphasizing Article XVII, Section 16 of the Constitution, the dissenting
opinion considers the ongoing government reorganization valid because it is
merely a continuation of the reorganization begun during the transition period.
The reason for this conclusion is the phrase "and the reorganization following
the ratification of the Constitution," that is to say, after February 2, 1987,
appearing in the said provision. The consequence (and I hope I have not
misread it) is that the present reorganization may still be undertaken with the
same "absoluteness" that was allowed the revolutionary reorganization
although the Freedom Constitution is no longer in force.
Reorganization of the government may be required by the legislature even
independently of specific constitutional authorization, as in the case, for
example, of R.A. No. 51 and B.P. No. 129. Being revolutionary in nature, the
reorganization decreed by Article III of the Freedom Constitution was
unlimited as to its method except only as it was later restricted by President
Aquino herself through various issuances, particularly E.O. No. 17. But this
reorganization, for all its permitted summariness, was not indefinite. Under
Section 3 of the said Article III, it was allowed only up to February 29,1987
(which we advanced to February 2, 1987, when the new Constitution became
effective).
The clear implication is that any government reorganization that may be
undertaken thereafter must be authorized by the legislature only and may not
be allowed the special liberties and protection enjoyed by the revolutionary
reorganization. Otherwise, there would have been no necessity at all for the
time limitation expressly prescribed by the Freedom Constitution.
I cannot accept the view that Section 16 is an authorization for the open-
ended reorganization of the government "following the ratification of the
Constitution." I read the provision as merely conferring benefits — deservedly
or not — on persons separated from the government as a result of the
reorganization of the government, whether undertaken during the transition
period or as a result of a law passed thereafter. What the grants is privileges
to the retirees, not power to the provision government. It is axiomatic that
grants of power are not lightly inferred, especially if these impinge on
individual rights, and I do not see why we should depart from this rule.
To hold that the present reorganization is a continuation of the one begun
during the transition period is to recognize the theory of the public respondent
that all officers and employees not separated earlier remain in a hold-over
capacity only and so may be replaced at any time even without cause. That is
a dangerous proposition that threatens the security and stability of every civil
servant in the executive department. What is worse is that this situation may
continue indefinitely as the claimed "progressive" reorganization has no
limitation as to time.
Removal imports the forcible separation of the incumbent before the
expiration of his term and can be done only for cause as provided by law.
Contrary to common belief, a reorganization does not result in removal but in
a different mode of terminating official relations known as abolition of the
office (and the security of tenure attached thereto.) The erstwhile holder of
the abolished office cannot claim he has been removed without cause in
violation of his constitutional security of tenure. The reason is that the right
itself has disappeared with the abolished office as an accessory following the
principal. (Ocampo v. Sec. of Justice, 51 O.G. 147; De la Llana v. Alba, 112
SCRA 294; Manalang v. Quitoriano, 94 Phil. 903.)
This notwithstanding, the power to reorganize is not unlimited. It is essential
that it be based on a valid purpose, such as the promotion of efficiency and
economy in the government through a pruning of offices or the streamlining of
their functions. (Cervantes v. Auditor-General, 91 Phil. 359.) Normally, a
reorganization cannot be validly undertaken as a means of purging the
undesirables for this would be a removal in disguise undertaken en masse to
circumvent the constitutional requirement of legal cause. (Eradication of graft
and corruption was one of the expressed purposes of the revolutionary
organization, but this was authorized by the Freedom Constitution itself.) In
short, a reorganization, to be valid, must be done in good faith. (Urgelio v.
Osmena, 9 SCRA 317; Cuneta v. Court of Appeals, 1 SCRA 663; Carino v.
ACCFA, 18 SCRA 183.)
A mere recitation — no matter how lengthy — of the directives, guidelines,
memoranda, etc. issued by the government and the action purportedly taken
thereunder does not by itself prove good faith. We know only too well that
these instructions, for all their noble and sterile purposes, are rarely followed
in their actual implementation. The reality in this case, as the majority opinion
has pointed out and as clearly established in the hearing we held, is that the
supposed reorganization was undertaken with an eye not to achieving the
avowed objectives but to accommodating new appointees at the expense of
the dislodged petitioners. That was also the finding of the Civil Service
Commission, to which we must accord a becoming respect as the
constitutional office charged with the protection of the civil service from the
evils of the spoils system.
The present administration deserves full support in its desire to improve the
civil service, but this objective must be pursued in a manner consistent with
the Constitution. This praiseworthy purpose cannot be accomplished by an
indiscriminate reorganization that will sweep in its wake the innocent along
with the redundant and inept, for the benefit of the current favorites.
MELENCIO-HERRERA, J., dissenting:
The historical underpinnings of Government efforts at reorganization hark
back to the people power phenomenon of 22-24 February 1986, and
Proclamation No. 1 of President Corazon C. Aquino, issued on 25 February
1986, stating in no uncertain terms that "the people expect a reorganization of
government." In its wake followed Executive Order No. 5, issued on 12 March
1986, "Creating a Presidential Commission on Government Reorganization,"
with the following relevant provisions:
WHEREAS, there is need to effect the necessary and proper
changes in the organizational and functional structures of the national
and local governments, its agencies and instrumentalities, including
government-owned and controlled corporations and their
subsidiaries, in order to promote economy, efficiency and
effectiveness in the delivery of public services
xxx         xxx         xxx
Section 2. The functional jurisdiction of the PCGR shall encompass,
as necessary, the reorganization of the national and local
governments, its agencies and instrumentalities including
government-owned or controlled corporations and their subsidiaries.
xxx         xxx         xxx (Emphasis supplied)
Succeeding it was Proclamation No. 3, dated 25 March 1986, also known as
the Freedom Constitution, declaring, in part, in its Preamble as follows:
WHEREAS, the direct mandate of the people as manifested by their
extraordinary action demands the complete reorganization of the
government, ... (Emphasis supplied)
and pertinently providing:
ARTICLE II
Section I
xxx         xxx         xxx
The President shall give priority to measures to achieve the mandate
of the people to:
 (a) Completely reorganize the government and eradicate
unjust and oppressive structures, and all iniquitous vestiges
of the previous regime;" (Emphasis supplied)
xxx         xxx         xxx
ARTICLE III — GOVERNMENT REORGANIZATION
Section 2. All elective and appointive officials and employees under
the 1973 Constitution shall continue in office until otherwise provided
by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such is made
within a period of one year from February 25, 1986.
Section 3. Any public office or employee separated from the service
as a result of the reorganization effected under this Proclamation
shall, if entitled under the laws then in force, receive the retirement
and other benefits accruing thereunder. (Emphasis ours)
On 28 May 1986, Executive Order No. 17 was issued "Prescribing Rules and
Regulations for the Implementation of Section 2, Article III of the Freedom
Constitution' providing, inter alia, as follows:
Section 1. In the course of implementing Article III, Section 2 of the
Freedom Constitution, the Head of each Ministry shall see to it that
the separation or replacement of officers and employees is made
only for justifiable reasons, to prevent indiscriminate dismissal, of
personnel in the career civil service whose qualifications and
performance meet the standards of public service of the New
Government.
xxx         xxx         xxx
The Ministry concerned shall adopt its own rules and procedures for
the review and assessment of its own personnel, including the
identification of sensitive positions which require more rigid
assessment of the incumbents, and shall complete such
review/assessment as expeditiously as possible but not later than
February 24, 1987 to prevent undue demoralization in the public
service.
Section 2. The Ministry Head concerned, on the basis of such review
and assessment shall determine who shall be separated from the
service. Thereafter, he shall issue to the official or employee
concerned a notice of separation which shall indicate therein the
reason/s or ground /s for such separation and the fact that the
separated official or employee has the right to file a petition for
reconsideration pursuant to this Order. Separation from the service
shall be effective upon receipt of such notice, either personally by the
official or employee concerned or on his behalf by a person of
sufficient discretion.
Section 3. The following shall be the grounds for separation/
replacement of personnel:
1. Existence of a case for summary dismissal
pursuant to Section 40 of the Civil Service Law;
2. Existence of a probable cause for violation of the
Anti-Graft and Corrupt Practice Act as determined by
the Ministry Head concerned;
3. Gross incompetence or inefficiency in the
discharge of functions;
4. Misuse of Public office for partisan political
purposes;
5. Any other analogous ground showing that the
incumbent is unfit to remain in the service or his
separation/replacement is in the interest of the
service.
Section 11. This Executive Order shall not apply to elective officials
or those designated to replace them, presidential appointees, casual
and contractual employees, or officials and employees removed
pursuant to disciplinary proceedings under the Civil Service Law and
rules, and to those laid off as a result of the reorganization
undertaken pursuant to Executive Order No. 5. (Emphasis supplied)
On 6 August 1986, Executive Order No. 39 was issued by the President
"Enlarging the Powers and Functions of the Commissioner of Customs", as
follows:
xxx         xxx         xxx
SECTION 1. In addition to the powers and functions of the
Commissioner of Customs, he is hereby authorized, subject to the
Civil Service Law and its implementing rules and regulations:
 a) To appoint all Bureau personnel, except those
appointed by the President;
b) To discipline, suspend, dismiss or otherwise
penalize erring Bureau officers and employees;
c) To act on all matters pertaining to promotion,
transfer, detail, reassignment, reinstatement,
reemployment and other personnel action, involving
officers and employees of the Bureau of Customs.
xxx         xxx         xxx
On 30 January 1987, Executive Order No. 127 was issued "Reorganizing the
Ministry of Finance." Similar Orders, approximately thirteen (13) in all, 1 were
issued in respect of the other executive departments. The relevant provisions
relative to the Bureau of Customs read:
RECALLING that the reorganization of the government is mandated
expressly in Article II, Section l(a) and Article III of the Freedom
Constitution;
HAVING IN MIND that pursuant to Executive Order No. 5 (1986), it is
directed that the necessary and proper changes in the organizational
and functional structures of the government, its agencies and
instrumentalities, be effected in order to promote efficiency and
effectiveness in the delivery of public services;
BELIEVING that it is necessary to reorganize the Ministry of Finance
to make it more capable and responsive, organizationally and
functionally, in its primary mandate of judiciously generating and
efficiently managing the financial resources of the Government, its
subdivisions and instrumentalities in order to attain the socio-
economic objectives of the national development programs.
xxx         xxx         xxx
SEC. 2. Reorganization. — The Ministry of Finance, hereinafter
referred to as Ministry, is hereby reorganized, structurally and
functionally, in accordance with the provisions of this Executive
Order.
SEC. 33. Bureau of Customs.
... Executive Order No. 39 dated 6 August 1986 which grants
autonomy to the Commissioner of Customs in matters of appointment
and discipline of Customs personnel shall remain in effect.
SEC. 55. Abolition of Units Integral to Ministry. — All units not
included in the structural organization as herein provided and all
positions thereof are hereby deemed abolished. ... Their personnel
shall be entitled to the benefits provided in the second paragraph of
Section 59 hereof.
SEC. 59. New Structure and Pattern. — Upon approval of this
Executive Order, the officers and employees of the Ministry shall, in a
holdover capacity, continue to perform their respective duties and
responsibilities and receive the corresponding salaries and benefits
unless in the meantime they are separated from government service
pursuant to executive Order No. 17 (1986) or article III of the
Freedom Constitution.
The new position structure and staffing pattern of the ministry shall be
approved and prescribed by the Minister within one hundred twenty
(120) days from the approval of this Executive Order and the
authorized positions created hereunder shall be filled with regular
appointments by him or by the President, as the case may be. Those
incumbents whose positions are not included therein or who are not
reappointed shall be deemed separated from the service. Those
separated from the service shall receive the retirement benefits to
which they may be entitled under the existing laws, rules and
regulations. Otherwise, they shall be paid the equivalent of one
month basic salary for every year of service or the equivalent nearest
fraction thereof favorable to them on the basis of highest salary
received, but in no case shall such payment exceed the equivalent of
12 months salary.
No court or administrative body shall issue any writ or preliminary
junction or restraining order to enjoin the separation/replacement of
any officer or employee affected under this Executive Order.
Section 67 — All laws, ordinances, rules, regulations and other
issuances or parts thereof, which are inconsistent with this Executive
Order, are hereby repealed or modified accordingly.
xxx         xxx         xxx (Emphasis ours)
On 2 February 1987, the present Constitution took effect (De Leon, et al., vs.
Esguerra, G.R. No. 78059, August 31, 1987153 SCRA 602). Reorganization
in the Government service pursuant to Proclamation No. 3, supra, was
provided for in its Section 16, Article XVIII entitled Transitory Provisions,
reading:
Section 16. Career civil service employees separated from the
service not for cause but as a result of the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986 and the reorganization
following the ratification of this Constitution shall be entitled to
appropriate separation pay and to retirement and other benefits
accruing to them under the laws of general application in force at the
time of their separation. In lieu thereof, at the option of the
employees, they may be considered for employment in the
Government or in any of its subdivisions, instrumentalities, or
agencies, including government owned or controlled corporations and
their subsidiaries. Ms provision also applies to career officers whose
resignation, tendered in line with the existing policy, has been
accepted.
On 24 May 1987 the then Commissioner of Customs, Alexander A. Padilla,
transmitted to the Department of Finance for approval the proposed "position
structure and staffing pattern" of the Bureau of Customs. Said Department
gave its imprimatur. Thereafter, the staffing pattern was transmitted to and
approved by the Department of Budget and Management on 7 September
1987 for implementation. Under the old staffing pattern, there were 7,302
positions while under the new staffing pattern, there are 6,530 positions CSC
Resolution in CSC Case No. 1, dated 20 September 1988, pp. 3-4).
On 22 September 1987, Salvador M. Mison assumed office as Commissioner
of Customs.
On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the
Implementation of Reorganization Executive Orders" was issued reading,
insofar as revelant to these cases, as follows:
It is my concern that ongoing process of government reorganization
be conducted in a manner that is expeditious, as well as sensitive to
the dislocating consequences arising from specific personnel
decisions.
The entire process of reorganization, and in particular the process of
separation from service, must be carried out in the most humane
manner possible.
For this purpose, the following guidelines shall be strictly followed:
1. By October 21, 1987, all employees covered by
the Executive Orders for each agency on
reorganization shall be:
a. informed of their reappointment or
b. offered another position in the same
department/ agency or
c. informed of their termination.
2. In the event of an offer for a lower position, there
will be no reduction in the salary.
xxx         xxx         xxx
4. Each department/agency shall constitute a
Reorganization Appeals Board at the central office,
on or before October 21, 1987, to review or
reconsider appeals or complaints relative to
reorganization. All cases submitted to the Boards
shall be resolved subject to the following guidelines:
a. publication or posting of the appeal procedure
promulgated by the Department Secretary;
b. adherence to due process;
c. disposition within 30 days from submission of the
case;
d written notification of the action taken and the
grounds thereof.
Action by the Appeals Review Board does not preclude
appeal to the Civil Service Commission.
5. Placement in the new staffing pattern of incumbent
personnel shall be completed prior to the hiring of
new personnel, if any.
xxx         xxx         xxx (Emphasis ours)
On 25 November 1987 Commissioner Mison wrote the President requesting a
grace period until the end of February 1988 within which to completely
undertake the reorganization of the Bureau of Customs pursuant to Executive
Order No. 127 dated 30 January 1987. Said request was granted in a letter-
reply by Executive Secretary Catalino Macaraig, Jr., dated 22 December
1987.
On 6 January 1988, within the extended period requested, Bureau of
Customs Memorandum "Re: Guidelines on the Implementation of
Reorganization Executive Orders" was issued in the same tenor as the
Malacanang Memorandum of 2 October 1987, providing inter alia:
To effectively implement the reorganization at the Bureau of
Customs, particularly in the selection and placement of personnel,
and insure that the best qualified and most competent personnel in
the career service are retained, the following guidelines are hereby
prescribed for the guidance of all concerned
1. By February 28, 1988 all employees covered by Executive
Order No. 127 and the grace period extended to the Bureau
of Customs by the President of the Philippines on
reorganization shall be:
a. informed of their reappointment, or
b. offered another position in the same department or
agency or
c. informed of their termination.
2. In the event of termination, the employee shall:
a. be included in a consolidated list compiled by the
Civil Service Commission. All departments who are
recruiting shall give preference to the employees in
the list; and
b. continue to receive salary and benefits until
February 28, 1988, and
c. be guaranteed the release of separation benefits
within 45 days from termination and in no case later
than June 15, 1988.
xxx         xxx         xxx (Emphasis supplied)
It is to be noted that paragraph 1 above and its sub-sections reproduced
verbatim the Malacanang Guidelines of 2 October 1987 in that the employees
concerned were merely to be informed of their termination.
On 28 January 1988 Commissioner Mison addressed identical letters of
termination to Bureau of Customs officers and employees effective on 28
February 1988.
As of 18 August 1988, Commissioner Mison appointed five hundred twenty-
two (522) officials and employees of the Bureau of Customs (CSC Resolution
in CSC Case No. 1, dated 20 September 1988, p. 6). In fact, in a letter dated
27 January 1988, Commissioner Mison recommended Jose M. Balde for
appointment to President Aquino as one of three (3) Deputy Commissioners
under Executive Order No. 127.
In the interim, during the pendency of these Petitions, Republic Act No. 6656,
entitled "An Act to Protect the Security of Tenure of Civil Service Officers and
Employees in the Implementation of Government Reorganization" was
passed by Congress on 9 June 1988. The President signed it into law on 10
June 1988 and the statute took effect on 29 June 1988.
On 20 June 1988 Motions were filed, in these cases pending before this
Court, invoking the provisions of Republic Act No. 6656. The relevant
provisions thereof read:
SECTION 1. It is hereby declared the policy of the State to protect
the security of tenure of civil service officers and employees in the
reorganization of the various agencies of the National government ....
SECTION 2. No officer or employee in the career service shall be
removed except for a valid cause and after due notice and hearing. A
valid cause for removal exists when, pursuant to a bona fide
reorganization, a position has been abolished or rendered redundant
or there is a need to merge, divide, or consolidate positions in order
to meet the exigencies of the service, or other lawful causes allowed
by the Civil Service Law. The existence of any or some of the
following circumstances may be considered as evidence of bad faith
in the removals made as a result of reorganization, giving rise to a
claim for reinstatement or reappointment by an aggrieved party:
(a) Where there is a significant increase in the number of
positions in the new staffing pattern of the department or
agency concerned;
 (b) Where an office is abolished and another performing
substantially the same functions is created;
(c) Where incumbents are replaced by those less qualified in
terms of status of appointment, performance and merit;
(d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified offices
perform substantially the same functions as the original
offices;
(e) Where the removal violates the order of separation
provided in Section 3 hereof.
xxx         xxx         xxx
SECTION 9. All officers and employees who are found by the Civil
Service Commission to have been separated in violation of the
provisions of this Act, shall be ordered reinstated or reappointed as
the case may be without loss of seniority and shall be entitled to full
pay for the period of separation. Unless also separated for cause, all
officers and employees, including casuals and temporary employees,
who have been separated pursuant to reorganization shall, if entitled
thereto, be paid the appropriate separation pay and retirement and
other benefits under existing laws within ninety (90) days from the
date of the effectivity of their separation or from the date of the
receipt of the resolution of their appeals as the case may be:
Provided, That application for clearance has been filed and no action
thereon has been made by the corresponding department or agency.
Those who are not entitled to said benefits shall be paid a separation
gratuity in the amount equivalent to one (1) month salary for every
year of service. Such separation pay and retirement benefits shall
have priority of payment out of the savings of the department or
agency concerned.
xxx         xxx         xxx
SECTION 11. The executive branch of the government shall
implement reorganization schemes within a specified period of time
authorized by law.
In the case of the 1987 reorganization of the executive branch, all
departments and agencies which are authorized by executive orders
promulgated by the President to reorganize shall have ninety (90)
days from the approval of this Act within which to implement their
respective reorganization plans in accordance with the provisions of
this Act.
xxx         xxx         xxx
SECTION 13. All laws, rules and regulations or parts thereof,
inconsistent with the provisions of this Act are hereby repealed or
modified accordingly. The rights and benefits under this Act shall be
retroactive as of June 30, 1987.
xxx xxx xxx (Emphasis ours)
Given the foregoing statutory backdrop, the issues can now be addressed.
Scope of Section 16, Art. XVIII, 1987 Constitution
Crucial to the present controversy is the construction to be given to the
abovementioned Constitutional provision (SECTION 16, for brevity), which
speaks of.
Career civil service employees separated from the service not for
cause
but as a result of the reorganization pursuant to Proclamation No. 3
dated March 25, 1986
and the reorganization following the ratification of this Constitution ...
(paragraphing supplied).
To our minds, SECTION 16 clearly recognizes (1) the reorganization
authorized by Proclamation No. 3; (2) that such separation is NOT
FOR CAUSE but as a result of the reorganization pursuant to said
Proclamation; and (3) that the reorganization pursuant to
Proclamation No. 3 may be continued even after the ratification of the
1987 Constitution during the transition period.
Separation NOT FOR CAUSE
The canon for the removal or suspension of a civil service officer or employee
is that it must be FOR CAUSE. That means a guarantee of both procedural
and substantive due process. Basically, procedural due process would
require that suspension or dismissal come only after notice and hearing.
Substantive due process would require that suspension or dismissal be 'for
cause'." Bernas The Constitution of the Republic of the Philippines: A
Commentary, Vol. II, First Edition, 1988, p. 334)
The guarantee of removal FOR CAUSE is enshrined in Article IX-B, Section
2(3) of the 1987 Constitution, which states that 'No officer or employee of the
civil service shall be removed or suspended except FOR CAUSE provided by
law."
There can be no question then as to the meaning of the phrase FOR CAUSE.
It simply means the observance of both procedural and substantive due
process in cases of removal of officers or employees of the civil service.
When SECTION 16 speaks, therefore, of separation from the service NOT
FOR CAUSE, it can only mean the diametrical opposite. The constitutional
intent to exempt the separation of civil service employees pursuant to
Proclamation No. 3 from the operation of Article IX-B, Section 2(3), becomes
readily apparent. A distinction is explicitly made between removal FOR
CAUSE, which as aforestated, requires due process, and dismissal NOT
FOR CAUSE, which implies that the latter is not bound by the "fetters' of due
process.
It is obviously for that reason that Section 16 grants separation pay and
retirement benefits to those separated NOT FOR CAUSE but as a result of
the reorganization precisely to soften the impact of the non-observance of
due process. "What is envisioned in Section 16 is not a remedy for arbitrary
removal of civil servants enjoying security of tenure but some form of relief for
members of the career civil service who may have been or may be legally but
involuntarily 'reorganized out' of the service or may have voluntarily resigned
pursuant to the reorganization policy" (ibid., p. 615).
Reorganization Pursuant to Proclamation No. 3 to Continue Transitorily Even
After Ratification
By its very context, SECTION 16 envisages the continuance of the
reorganization pursuant to Proclamation No. 3 even after ratification of the
Constitution and during the transition period. The two [2] stages
contemplated, namely, (1) the stage before and (2) after ratification, refer to
the same nature of separation "NOT FOR CAUSE but as a result of
Proclamation No. 3." No valid reason has been advanced for a different
treatment after ratification as the majority opines i.e., that separation NOT
FOR CAUSE is allowed before ratification but that, thereafter, separation can
only be FOR CAUSE.
A fundamental principle of Constitutional construction is to assure the
realization of the purpose of the framers of the organic law and of the people
who adopted it.
That the reorganization commenced pursuant to Proclamation No. 3 was
envisioned to continue even after the ratification of the 1987 Constitution, at
least transitorily, is evident from the intent of its authors discoverable from
their deliberations held on 3 October 1986 and evincing their awareness that
such reorganization had not as yet been fully implemented. Thus:
Mr. PADILLA. Mr. Presiding Officer, on lines 2 to 5 is the clause
'pursuant to the provisions of Article III of Proclamation No. 3, issued
on March 25, 1986, and the reorganization.' Are those words
necessary? Can we not just say 'result of the reorganization following
the ratification of this Constitution'? In other words, must we make
specific reference to Proclamation No. 3?
Mr. SUAREZ. Yes. I think the committee feels that is necessary,
because in truth there has been a reorganization by virtue of
Proclamation No. 3. In other words, there are two stages of
reorganization covered by this section.
Mr. PADILIA. I understand there is a reorganization committee
headed by a minister?
Mr. SUAREZ. Philippine Commission on Government
Reorganization.
Mr. PADILLA. But whether that has already been implemented or not,
I do not believe in it. There has been a plan, but I do not think it has
been implemented. If we want to include any previous reorganization
after or before the ratification, why do we not just say reorganization
before or after the ratification' to simplify the provision and eliminate
two-and-a-half sentences that may not be necessary? And as a result
of the reorganization, if the committee feels there has been
reorganization before ratification and there be reorganization after,
we just say 'before or after the ratification of this Constitution.
Mr. SUAREZ. Something like this as a result of the reorganization
effected before or after the ratification of the Constitution on the
understanding, with the statement into the records, that this would be
applicable to those reorganized out pursuant to the Freedom
Constitution also.
Mr. PADILLA. That is understood if there has been a reorganization
before the ratification or a reorganization after the ratification."
(RECORDS of the Constitutional Commission, Vol. 5, p. 416)
(Emphasis provided)
It should also be recalled that the deadline for the reorganization under
Proclamation No. 3 was "one year from February 25, 1986" (Article III,
Section 2), or up to February 24, 1987. Executive Order No. 17 itself provided
that the review/assessment of personnel be completed "not later than
February 24, 1987." But, confronted with the reality of the ratification of the
Constitution before that deadline without reorganization having been
completed, there was need for a provision allowing for its continuance even
after ratification and until completed. It was also to beat that deadline that EO
127 and similar issuances, providing for the reorganization of departments of
government, were all dated 30 January 1987 or prior to the plebiscite held on
2 February 1987. The intent to continue and complete the reorganizations
started is self- evident in SECTION 16.
In Jose vs. Arroyo, et al. (G.R. No. 78435, August 11, 1987), which was a
Petition for certiorari and Prohibition to enjoin the implementation of Executive
Order No. 127, we recognized that the reorganization pursuant to
Proclamation No. 3 as mandated by SECTION 16, was to continue even after
ratification when we stated:
The contention of petitioner that EO No. 127 is violative of the
provision of the 1987 Constitution guaranteeing career civil service
employees security of tenure overlooks the provision of Section 16,
Art. XVIII (Transitory Provisions) which explicitly authorizes the
removal of career civil service employees not for cause but as a
result of the reorganization pursuant to Proclamation No. 3 dated
March 25, 1986 and the reorganization following the ratification of the
Constitution. By virtue of said provision, the reorganization of the
Bureau of Customs under Executive Order No. 127 may continue
even after the ratification of this Constitution and career civil service
employees may be separated from the service without cause as a
result of such reorganization. (Emphasis ours)
With due respect to the majority, we disagree with its conclusion that the
foregoing pronouncement is mere "obiter dictum."
An obiter dictum or dictum has been defined as a remark or opinion
uttered, by the way. It is a statement of the court concerning a
question which was not directly before it (In re Hess 23 A. 2d. 298,
301, 20 N.J. Misc. 12).lâwphî1.ñèt It is language unnecessary to a
decision, (a) ruling on an issue not raised, or (an) opinion of a judge
which does not embody the resolution or determination of the court,
and is made without argument or full consideration of the point
(Lawson v. US, 176 F2d 49, 51, 85 U.S. App. D.C. 167). It is an
expression of opinion by the court or judge on a collateral question
not directly involved, (Crescent Ring Co. v. Travelers Indemnity Co.
132 A. 106, 107, 102 N.J. Law 85) or not necessary for the decision
Du Bell v. Union Central Life Ins. Co., 29, So. 2d 709, 712; 211 La.
167).
In the case at bar, however, directly involved and squarely before the Court
was the issue of whether EO 127 violates Section 2(3) of Article IX-B of the
1987 Constitution against removal of civil service employees except for
cause." Petitioner batted for the affirmative of the proposition, while
respondents contended that "removal of civil service employees without
cause is allowed not only under the Provisional Constitution but also under
the 1987 Constitution if the same is made pursuant to a reorganization after
the ratification of the Constitution."
It may be that the Court dismissed that Petition for being premature,
speculative and purely anticipatory" inasmuch as petitioner therein had "not
received any communication terminating or threatening to terminate his
services." But that was only one consideration. The Court still proceeded to
decide all the issues adversatively contested by the parties, namely "1) that
the expiration date of February 25, 1 987 fixed by Section 2 of Proclamation
No. 3 on which said Executive order is based had already lapsed; 2) that the
Executive Order has not been published in the Official Gazette as required by
Article 2 of the Civil Code and Section 1 1 of the Revised Administrative
Code; and 3) that its enforcement violates Section 2(3) of Article IX B of the
1987 Constitution against removal of civil service employees except for
cause."
The ruling of the Court, therefore, on the Constitutional issues presented,
particularly, the lapse of the period mandated by Proclamation No. 3, and the
validity of EO 127, cannot be said to be mere "obiter." They were ultimate
issues directly before the Court, expressly decided in the course of the
consideration of the case, so that any resolution thereon must be considered
as authoritative precedent, and not a mere dictum (See Valli v. US, 94 F2d
687 certiorari granted 58 S. Ct. 760, 303 U.S. 82 L. Ed. 1092; See also
Weedin v. Tayokichi Yamada 4 F. (2d) 455). Such resolution would not lose
its value as a precedent just because the disposition of the case was also
made on some other ground.
.....And this rule applies as to all pertinent questions although only
incidentally involved, which are presented and decided in the regular
course of the consideration of the case, and lead up to the final
conclusion (Northern Pac. Ry Co. v. Baker, D.C. Wash., 3 F. Suppl.
1; See also Wisconsin Power and Light Co. v. City of Beloit 254 NW
119; Chase v. American Cartage Co. 186 N.W. 598; City of Detroit, et
al. v. Public Utilities Comm. 286 N.W. 368). Accordingly, a point
expressly decided does not lose its value as a precedent because the
disposition of the case is made on some other ground. (Wagner v.
Com Products Refining Co. D.C. N.J. 28 F 2d 617) Where a case
 presents two or more points, any one of which is sufficient to
determine the ultimate issue, but the court actually decides all such
points, the case is an authoritative precedent as to every point
decided, and none of such points can be regarded as having merely
the status of a dictum (See U.S. Title Insurance and Trust Co., Cal.,
44 S. Ct. 621, 265 U.S. 472, 68 L. Ed. 1110; Van Dyke v. Parker 83
F. (2d) 35) and one point should not be denied authority merely
because another point was more dwelt on and more fully argued and
considered. (Richmond Screw Anchor Co. v. U.S. 48 S. Ct. 194, 275
U.S. 331, 72 L. Ed. 303)"
It is true that in Palma-Fernandez vs. de la Paz (G.R. No. 78946, April 15,
1986, 160 SCRA 751), we had stated:
The argument that, on the basis of this provision (Section 26 of
Executive Order No. 119, or the 'Reorganization Act of the Ministry of
Health'), petitioner's term of office ended on 30 January 1987 and
that she continued in the performance of her duties merely in a hold-
over capacity and could be transferred to another position without
violating any of her legal rights, is untenable. The occupancy of a
position in a hold-over capacity was conceived to facilitate
reorganization and would have lapsed on 25 February 1987 (under
the Provisional Constitution), but advanced to 2 February 1987 when
the 1987 Constitution became effective (De Leon, et al., vs. Hon.
Esguerra, et al., G.R. No. 78059, 31 August 1987, 153 SCRA 602).
After the d date the provisions of the latter on security of tenure
govern.
The factual situation in the two cases, however, radically differ. In the cited
case, Dra. Palma-Fernandez, the petitioner, had already been extended a
permanent appointment as Assistant Director for Professional Services of the
East Avenue Medical Center but was still being transferred by the Medical
Center Chief to the Research Office against her consent. Separation from the
service as a result of reorganization was not involved. The question then
arose as to whether the latter official had the authority to transfer or whether
the power to appoint and remove subordinate officers and employees was
lodged in the Secretary of Health. Related to that issue was the vital one of
whether or not her transfer, effected on 29 May 1987, was tantamount to a
removal without cause. Significant, too, is the fact that the transfer was
basically made "in the interest of the service" pursuant to Section 24(c) of PD
No. 807, or the Civil Service Decree, and not because she was being
reorganized out by virtue of EO 119 or the "Reorganization Act of the Ministry
of Health," although the said Act was invoked after the fact. And so it was that
SECTION 16 was never mentioned, much less invoked in the Palma-
Fernandez case.
Finally, on this point, it is inaccurate for the majority to state that there were
no reorganization orders after ratification. There were, namely, EO 181
(Reorganization Act of the Civil Service Commission), June 1, 1987; EO 193
(Reorganization Act of the Office of Energy Affairs), June 10, 1987; EO 230
(Reorganization Act of NEDA), July 22, 1987; EO 262 (Reorganization Act of
the Department of Local Government), July 25, 1987; EO 297
(Reorganization Act of the Office of the Press Secretary), July 25, 1987.
The Element of Good Faith
The majority concedes that reorganization can be undertaken provided it be
in good faith but concludes that Commissioner Mison was not in good faith.
The aforesaid conclusion is contradicted by the records.
Executive Order No. 127, dated 30 January 1987, specifically authorized the
reorganization of the Bureau of Customs "structurally and functionally" and
provided for the abolition of all units and positions thereof not included in the
structural organization S election 55).
As stated heretofore, it was the former Commissioner of Customs, Alexander
A. Padilla who, on 24 May 1987, transmitted to the Department of Finance for
approval the proposed "position structure and staffing pattern" of the Bureau
of Customs. This was approved by the Department of Finance. Thereafter, it
was transmitted to and approved by the Department of Budget and
Management on 7 September 1987 for implementation. Under the old staffing
pattern, there were 7,302 positions while under the new staffing pattern, there
are 6,530 positions.
On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the
Implementation of Reorganization Executive Orders" provided:
By October 21, 1987, all employees covered by the Executive orders
for each agency on reorganization shall be:
a. informed of their reappointment, or
b. offered another position in the same department or
agency, or
c. informed of their termination. (emphasis supplied)
On 25 November 1987 Commissioner Mison asked for and was granted by
the President an extension up to February 1988 within which to completely
undertake the reorganization of the Bureau of Customs.
On 6 January 1988, he issued Bureau of Customs Memorandum "Re
Guidelines on the Implementation of Reorganization Executive Orders"
reiterating the above- quoted portion of the Malacanang Memorandum of 2
October 1987. Pursuant thereto, on 28 January 1988, Commissioner Mison
addressed uniform letters of termination to the employees listed on pages 15,
16 and 17 of the majority opinion, effective on 28 February 1988, within the
extended period granted.
The records further show that upon Commissioner Mison's official inquiry,
Secretary of Justice Sedfrey A. Ordoñ;ez, rendered the following Opinion:
. . . It is believed that customs employees who are reorganized out in
the course of the implementation of E.O. No. 127 (reorganizing the
Department of Finance) need not be informed of the nature and
cause of their separation from the service. It is enough that they be
'informed of their termination' pursuant to section 1(c) of the
Memorandum dated October 2, 1987 of President Aquino, which
reads:
1. By October 21, 1987, all employees covered by the
Executive orders for each agency on reorganization shall be:
xxx         xxx         xxx
c) Informed of their terminations.
The constitutional mandate that 'no officer or employee of the civil
service shall be renewed or suspended except for cause as provided
by law' (Sec. 2(4) (sic), Article IX-B of the 1987 Constitution) does not
apply to employees who are separated from office as a result of the
reorganization of that Bureau as directed in Executive Order No. 127.
xxx         xxx         xxx
Regarding your (third) query, the issue as to the constitutionality of
Executive Order No. 127 is set at rest, after the Supreme Court
resolved to dismiss the petition for certiorari questioning its
enforceability, for lack of merit (see Jose vs. Arroyo, et al., supra).
(Opinion No. 41, s. 1988, March 3, 1988) (Emphasis supplied)
The former Chairman of the Civil Service Commission, Celerina G. Gotladera
likewise periodically consulted by Commissioner Mison, also expressed the
opinion that "it is not a prerequisite prior to the separation of an employee
pursuant to reorganization that he be administratively charged." (Annex 16, p.
411, Rollo, G.R. No. 85310)
Moreover, the records show that the final selection and placement of
personnel was done by a Placement Committee, one of whose members is
the Head of the Civil Service Commission Field Office, namely, Mrs.
Purificacion Cuerdo The appointment of employees made by Commissioner
Mison was based on the list approved by said Placement Committee.
But the majority further faults Mison for defying the President's directive to
halt further layoffs as a consequence of reorganization, citing OP Memo of 14
October 1987, reading:
Further to the Memorandum dated October 2, 1987 on the same
subject, I have ordered that there will be no further layoffs this year of
personnel as a result of the government reorganization. (p. 45,
Decision)
The foregoing, however, must be deemed superseded by later developments,
namely, the grant to Commissioner Mison by the President on 22 December
1987 of a grace period until the end of February 1988 within which to
completely undertake the reorganization of the Bureau of Customs, which
was, in fact, accomplished by 28 February 1988.
To further show lack of good faith, the majority states that Commissioner
Mison failed to observe the procedure laid down by EO 17, supra, directing
inter alia that a notice of separation be issued to an employee to be
terminated indicating therein the reason/s or ground/s for such separation.
That requirement, however, does not appear in Section 59 of EO 127, which
provides on the contrary "that those incumbents whose positions are not
included in the new position structure and staffing pattern of the Ministry or
who are not reappointed shall be deemed separated from the service." The
right granted by EO 17 to an employee to be informed of the ground for his
separation must be deemed to have been revoked by the repealing clause of
EO 127 (Section 67) providing that "all laws, ordinances or parts thereof,
which are inconsistent with this Executive Order, are hereby repealed and
modified accordingly."
Moreover, Section 11 of EO 17 explicitly excepts from its coverage a
reorganization pursuant to EO 5. Thus
 The Executive Order shall not apply to elective officials or those
designated to replace them, presidential appointees, casual and
contractual employees, or officials and employees removed pursuant
to desciplinary proceedings under the Civil Service law and rules, and
to those laid off as a result of reorganization undertaken pursuant to
Executive Order No. 5. (Emphasis ours)
That EO 127 was issued pursuant to or in implementation of EO 5, is shown
by its introductory portion reading:
Recalling that the reorganization of the government is mandated
expressly by Article II, Section 1 (a) and Article III of the Freedom
Constitution;
Having in mind that pursuant to Executive order No. 5 (1986), it is
directed that the necessary and proper changes in the organizational
and functional structures of the government, its agencies and
instrumentalities, be effected in order to promote efficiency and
effectiveness in the delivery of public service; (Italics supplied)
Constitutionality of Republic Act No. 6656
The majority also relies on Republic Act No. 6656 entitled an "Act to Protect
the Security of Tenure of Civil Service Officers and Employees in the
Implementation of Government Reorganization," particularly Section 2
thereof, to test the good faith of Commissioner Mison.
We are of the view, however, that in providing for retroactivity in its Section
13, RA 6656 clashes frontally with SECTION 16.
1) SECTION 16 clearly recognizes that career service employees separated
from the service by reason of the "complete reorganization of the
government" pursuant to Proclamation No. 3 may be separated NOT FOR
CAUSE. And yet, RA 6656 requires the exact opposite — separation FOR
CAUSE. It would not be remiss to quote the provision again:
SEC. 2. No officer or employee in the career service shall be
removed except for a valid cause and after due notice and hearing. A
valid cause for removal exist when, pursuant to a bona fide
reorganization, a position has been abolished or rendered redundant
or there is a need to merge, divide, or consolidate positions in order
to meet the exigencies of the service, or other lawful causes allowed
by the Civil Service law. The existence of any or some of the
following circumstances may be considered as evidence of bad faith
in the removals made as a result of reorganization, giving rise to a
claim for reinstatement or reappointment by an aggrieved party: (a)
Where there is a significant increase in the number of positions in the
new staffing pattern of the department or agency concerned; (b)
Where an office is abolished and another performing substantially the
same functions is created; (c) Where incumbents are replaced by
those less qualified in terms of status of appointment, performance
and merit; (d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified offices perform
substantially the same functions as the original offices; (e) Where the
removal violates the order of separation provided in Section 3 hereof.
(Republic Act No. 6156)
The standards laid down are the "traditional" criteria for removal of employees
from the career service, e.g. valid cause, due notice and hearing, abolition of,
or redundancy of offices. Proclamation No. 3, on the other hand, effectuates
the "progressive" type of reorganization dictated by the exigencies of the
historical and political upheaval at the time. The "traditional" type is limited in
scope. It is concerned with the individual approach where the particular
employee involved is charged administratively and where the requisites of
notice and hearing have to be observed. The "progressive" kind of
reorganization, on the other hand, is the collective way. It is wider in scope,
and is the reorganization contemplated under SECTION 16.
2) By providing for reinstatement in its Section 9, RA 6656 adds a benefit not
included in SECTION 16. The benefits granted by the latter provision to
employees separated NOT FOR CAUSE but as a consequence of
reorganization are "separation pay, retirement, and other benefits accruing to
them under the laws of general application in force at the time of their
separation." The benefit of reinstatement is not included. RA 6656, however,
allows reinstatement. That it cannot do because under SECTION 16, it is not
one of the laws "in force at the time of their separation."
The Constitution is the paramount law to which all laws must conform. It is
from the Constitution that all statutes must derive their bearings. The
legislative authority of the State must yield to the expression of the sovereign
will. No statutory enactment can disregard the Charter from which it draws its
own existence (Phil. Long Distance Telephone Co. v. Collector of Internal
Revenue, 90 Phil. 674 [1952]). But, that is exactly what RA 6656 does in
providing for retroactivity — it disregards and contravenes a Constitutional
imperative. To save it, it should be applied and construed prospectively and
not retroactively notwithstanding its explicit provision. Then, and only then,
would it make good law.
Effects of Reorganization
To be sure, the reorganization could effect the tenure of members of the
career service as defined in Section 5, Article IV of Presidential Decree No.
807, and may even result in the separation from the office of some
meritorious employees. But even then, the greater good of the greatest
number and the right of the citizenry to a good government, and as they
themselves have mandated through the vehicle of Proclamation No. 3,
provide the justification for the said injury to the individual. In terms of values,
the interest of an employee to security of tenure must yield to the interest of
the entire populace and to an efficient and honest government.
But a reorganized employee is not without rights. His right lies in his past
services, the entitlement to which must be provided for by law. EO 127
provides for the same in its Section 59, and so does SECTION 16 when the
latter specified that career civil service employees separated from the service
not for cause:
shall be entitled to appropriate separation pay and to retirement and
other benefits accruing to them under the laws of general application
in force at the time of their separation. In lieu thereof, at the option of
the employees, they may be considered for employment in the
Government or in any of its subdivisions, instrumentalities, or
agencies, including government-owned or controlled corporations
and their subsidiaries. This provision also applies to career officers
whose resignation, tendered in line with the existing policy, has been
accepted.
This is a reward for the employee's past service to the Government. But this
is all There is no vested property right to be reemployed in a reorganized
office.
The right to an office or to employment with government or any of its
agencies is not a vested property right, and removal therefrom will
not support the question of due process" Yantsin v. Aberdeen, 54
Wash 2d 787, 345 P 2d 178). A civil service employee does not have
a constitutionally protected right to his position, which position is in
the nature of a public office, political in character and held by way of
grant or privilege extended by government; generally he has been
held to have no property right or vested interest to which due process
guaranties extend (See Taylor v. Beckham 178 U.S. 548, 44 L Ed.
1187; Angilly v. US CA2 NY 199 F 2d 642; People ex. rel. Baker v.
Wilson, 39 III App 2d 443, 189 NE 2d 1; Kelliheller v. NY State Civil
Service Com 21 Misc 2d 1034, 194 NYS 2d 89).
To ensure, however, that no meritorious employee has been separated from
the service, there would be no harm, in fact, it could do a lot of good, if the
Commissioner of Customs reviews the evaluation and placements he has so
far made and sees to it that those terminated are included in a consolidated
list to be given preference by departments who are recruiting (Section 2[a],
BOC Memorandum, January 6,1988).lâwphî1.ñèt
Conclusion
Premises considered, and subject to the observation hereinabove made, it is
our considered view that the separation from the service "NOT FOR CAUSE
but as a result of the reorganization pursuant to Proclamation No. 3 dated
March 25, 1986" of the affected officers and employees of the Bureau of
Customs should be UPHELD, and the Resolutions of the Civil Service
Commission, dated 30 June 1988, 20 September 1988, and 16 November
1988 should be SET ASIDE for having been issued in grave abuse of
discretion.
Republic Act No. 6656, in so far as it provides for retroactivity, should be
declared UNCONSTITUTIONAL for being repugnant to the letter and spirit of
Section 16, Article XVIII of the 1987 Constitution.
 
Fernan, C.J., Narvasa, Feliciano, Regalado, JJ., concur.
Separate Opinions
CRUZ, J., concurring:
I concur with the majority view so ably presented by Mr. Justice Abraham F.
Sarmiento. While additional comments may seem superfluous in view of the
exhaustiveness of his ponencia, I nevertheless offer the following brief
observations for whatever they may be worth.
Emphasizing Article XVII, Section 16 of the Constitution, the dissenting
opinion considers the ongoing government reorganization valid because it is
merely a continuation of the reorganization begun during the transition period.
The reason for this conclusion is the phrase "and the reorganization following
the ratification of the Constitution," that is to say, after February 2, 1987,
appearing in the said provision. The consequence (and I hope I have not
misread it) is that the present reorganization may still be undertaken with the
same "absoluteness" that was allowed the revolutionary reorganization
although the Freedom Constitution is no longer in force.
Reorganization of the government may be required by the legislature even
independently of specific constitutional authorization, as in the case, for
example, of R.A. No. 51 and B.P. No. 129. Being revolutionary in nature, the
reorganization decreed by Article III of the Freedom Constitution was
unlimited as to its method except only as it was later restricted by President
Aquino herself through various issuances, particularly E.O. No. 17. But this
reorganization, for all its permitted summariness, was not indefinite. Under
Section 3 of the said Article III, it was allowed only up to February 29,1987
(which we advanced to February 2, 1987, when the new Constitution became
effective).
The clear implication is that any government reorganization that may be
undertaken thereafter must be authorized by the legislature only and may not
be allowed the special liberties and protection enjoyed by the revolutionary
reorganization. Otherwise, there would have been no necessity at all for the
time limitation expressly prescribed by the Freedom Constitution.
I cannot accept the view that Section 16 is an authorization for the open-
ended reorganization of the government "following the ratification of the
Constitution." I read the provision as merely conferring benefits — deservedly
or not — on persons separated from the government as a result of the
reorganization of the government, whether undertaken during the transition
period or as a result of a law passed thereafter. What the grants is privileges
to the retirees, not power to the provision government. It is axiomatic that
grants of power are not lightly inferred, especially if these impinge on
individual rights, and I do not see why we should depart from this rule.
To hold that the present reorganization is a continuation of the one begun
during the transition period is to recognize the theory of the public respondent
that all officers and employees not separated earlier remain in a hold-over
capacity only and so may be replaced at any time even without cause. That is
a dangerous proposition that threatens the security and stability of every civil
servant in the executive department. What is worse is that this situation may
continue indefinitely as the claimed "progressive" reorganization has no
limitation as to time.
Removal imports the forcible separation of the incumbent before the
expiration of his term and can be done only for cause as provided by law.
Contrary to common belief, a reorganization does not result in removal but in
a different mode of terminating official relations known as abolition of the
office (and the security of tenure attached thereto.) The erstwhile holder of
the abolished office cannot claim he has been removed without cause in
violation of his constitutional security of tenure. The reason is that the right
itself has disappeared with the abolished office as an accessory following the
principal. (Ocampo v. Sec. of Justice, 51 O.G. 147; De la Llana v. Alba, 112
SCRA 294; Manalang v. Quitoriano, 94 Phil. 903.)
This notwithstanding, the power to reorganize is not unlimited. It is essential
that it be based on a valid purpose, such as the promotion of efficiency and
economy in the government through a pruning of offices or the streamlining of
their functions. (Cervantes v. Auditor-General, 91 Phil. 359.) Normally, a
reorganization cannot be validly undertaken as a means of purging the
undesirables for this would be a removal in disguise undertaken en masse to
circumvent the constitutional requirement of legal cause. (Eradication of graft
and corruption was one of the expressed purposes of the revolutionary
organization, but this was authorized by the Freedom Constitution itself.) In
short, a reorganization, to be valid, must be done in good faith. (Urgelio v.
Osmena, 9 SCRA 317; Cuneta v. Court of Appeals, 1 SCRA 663; Carino v.
ACCFA, 18 SCRA 183.)
A mere recitation — no matter how lengthy — of the directives, guidelines,
memoranda, etc. issued by the government and the action purportedly taken
thereunder does not by itself prove good faith. We know only too well that
these instructions, for all their noble and sterile purposes, are rarely followed
in their actual implementation. The reality in this case, as the majority opinion
has pointed out and as clearly established in the hearing we held, is that the
supposed reorganization was undertaken with an eye not to achieving the
avowed objectives but to accommodating new appointees at the expense of
the dislodged petitioners. That was also the finding of the Civil Service
Commission, to which we must accord a becoming respect as the
constitutional office charged with the protection of the civil service from the
evils of the spoils system.
The present administration deserves full support in its desire to improve the
civil service, but this objective must be pursued in a manner consistent with
the Constitution. This praiseworthy purpose cannot be accomplished by an
indiscriminate reorganization that will sweep in its wake the innocent along
with the redundant and inept, for the benefit of the current favorites.
MELENCIO-HERRERA, J., dissenting:
The historical underpinnings of Government efforts at reorganization hark
back to the people power phenomenon of 22-24 February 1986, and
Proclamation No. 1 of President Corazon C. Aquino, issued on 25 February
1986, stating in no uncertain terms that "the people expect a reorganization of
government." In its wake followed Executive Order No. 5, issued on 12 March
1986, "Creating a Presidential Commission on Government Reorganization,"
with the following relevant provisions:
WHEREAS, there is need to effect the necessary and proper
changes in the organizational and functional structures of the national
 and local governments, its agencies and instrumentalities, including
government-owned and controlled corporations and their
subsidiaries, in order to promote economy, efficiency and
effectiveness in the delivery of public services
xxx         xxx         xxx
Section 2. The functional jurisdiction of the PCGR shall encompass,
as necessary, the reorganization of the national and local
governments, its agencies and instrumentalities including
government-owned or controlled corporations and their subsidiaries.
xxx         xxx         xxx (Emphasis supplied)
Succeeding it was Proclamation No. 3, dated 25 March 1986, also known as
the Freedom Constitution, declaring, in part, in its Preamble as follows:
WHEREAS, the direct mandate of the people as manifested by their
extraordinary action demands the complete reorganization of the
government, ... (Emphasis supplied)
and pertinently providing:
ARTICLE II
Section I
xxx         xxx         xxx
The President shall give priority to measures to achieve the mandate
of the people to:
(a) Completely reorganize the government and eradicate
unjust and oppressive structures, and all iniquitous vestiges
of the previous regime;" (Emphasis supplied)
xxx         xxx         xxx
ARTICLE III — GOVERNMENT REORGANIZATION
Section 2. All elective and appointive officials and employees under
the 1973 Constitution shall continue in office until otherwise provided
by proclamation or executive order or upon the designation or
appointment and qualification of their successors, if such is made
within a period of one year from February 25, 1986.
Section 3. Any public office or employee separated from the service
as a result of the reorganization effected under this Proclamation
shall, if entitled under the laws then in force, receive the retirement
and other benefits accruing thereunder. (Emphasis ours)
On 28 May 1986, Executive Order No. 17 was issued "Prescribing Rules and
Regulations for the Implementation of Section 2, Article III of the Freedom
Constitution' providing, inter alia, as follows:
Section 1. In the course of implementing Article III, Section 2 of the
Freedom Constitution, the Head of each Ministry shall see to it that
the separation or replacement of officers and employees is made
only for justifiable reasons, to prevent indiscriminate dismissal, of
personnel in the career civil service whose qualifications and
performance meet the standards of public service of the New
Government.
xxx         xxx         xxx
The Ministry concerned shall adopt its own rules and procedures for
the review and assessment of its own personnel, including the
identification of sensitive positions which require more rigid
assessment of the incumbents, and shall complete such
review/assessment as expeditiously as possible but not later than
February 24, 1987 to prevent undue demoralization in the public
service.
Section 2. The Ministry Head concerned, on the basis of such review
and assessment shall determine who shall be separated from the
service. Thereafter, he shall issue to the official or employee
concerned a notice of separation which shall indicate therein the
reason/s or ground /s for such separation and the fact that the
separated official or employee has the right to file a petition for
reconsideration pursuant to this Order. Separation from the service
shall be effective upon receipt of such notice, either personally by the
official or employee concerned or on his behalf by a person of
sufficient discretion.
Section 3. The following shall be the grounds for separation/
replacement of personnel:
 1. Existence of a case for summary dismissal
pursuant to Section 40 of the Civil Service Law;
2. Existence of a probable cause for violation of the
Anti-Graft and Corrupt Practice Act as determined by
the Ministry Head concerned;
3. Gross incompetence or inefficiency in the
discharge of functions;
4. Misuse of Public office for partisan political
purposes;
5. Any other analogous ground showing that the
incumbent is unfit to remain in the service or his
separation/replacement is in the interest of the
service.
Section 11. This Executive Order shall not apply to elective officials
or those designated to replace them, presidential appointees, casual
and contractual employees, or officials and employees removed
pursuant to disciplinary proceedings under the Civil Service Law and
rules, and to those laid off as a result of the reorganization
undertaken pursuant to Executive Order No. 5. (Emphasis supplied)
On 6 August 1986, Executive Order No. 39 was issued by the President
"Enlarging the Powers and Functions of the Commissioner of Customs", as
follows:
xxx         xxx         xxx
SECTION 1. In addition to the powers and functions of the
Commissioner of Customs, he is hereby authorized, subject to the
Civil Service Law and its implementing rules and regulations:
a) To appoint all Bureau personnel, except those
appointed by the President;
b) To discipline, suspend, dismiss or otherwise
penalize erring Bureau officers and employees;
c) To act on all matters pertaining to promotion,
transfer, detail, reassignment, reinstatement,
reemployment and other personnel action, involving
officers and employees of the Bureau of Customs.
xxx         xxx         xxx
On 30 January 1987, Executive Order No. 127 was issued "Reorganizing the
Ministry of Finance." Similar Orders, approximately thirteen (13) in all, 1 were
issued in respect of the other executive departments. The relevant provisions
relative to the Bureau of Customs read:
RECALLING that the reorganization of the government is mandated
expressly in Article II, Section l(a) and Article III of the Freedom
Constitution;
HAVING IN MIND that pursuant to Executive Order No. 5 (1986), it is
directed that the necessary and proper changes in the organizational
and functional structures of the government, its agencies and
instrumentalities, be effected in order to promote efficiency and
effectiveness in the delivery of public services;
BELIEVING that it is necessary to reorganize the Ministry of Finance
to make it more capable and responsive, organizationally and
functionally, in its primary mandate of judiciously generating and
efficiently managing the financial resources of the Government, its
subdivisions and instrumentalities in order to attain the socio-
economic objectives of the national development programs.
xxx         xxx         xxx
SEC. 2. Reorganization. — The Ministry of Finance, hereinafter
referred to as Ministry, is hereby reorganized, structurally and
functionally, in accordance with the provisions of this Executive
Order.
SEC. 33. Bureau of Customs.
... Executive Order No. 39 dated 6 August 1986 which grants
autonomy to the Commissioner of Customs in matters of appointment
and discipline of Customs personnel shall remain in effect.
SEC. 55. Abolition of Units Integral to Ministry. — All units not
included in the structural organization as herein provided and all
positions thereof are hereby deemed abolished. ... Their personnel
shall be entitled to the benefits provided in the second paragraph of
Section 59 hereof.
 SEC. 59. New Structure and Pattern. — Upon approval of this
Executive Order, the officers and employees of the Ministry shall, in a
holdover capacity, continue to perform their respective duties and
responsibilities and receive the corresponding salaries and benefits
unless in the meantime they are separated from government service
pursuant to executive Order No. 17 (1986) or article III of the
Freedom Constitution.
The new position structure and staffing pattern of the ministry shall be
approved and prescribed by the Minister within one hundred twenty
(120) days from the approval of this Executive Order and the
authorized positions created hereunder shall be filled with regular
appointments by him or by the President, as the case may be. Those
incumbents whose positions are not included therein or who are not
reappointed shall be deemed separated from the service. Those
separated from the service shall receive the retirement benefits to
which they may be entitled under the existing laws, rules and
regulations. Otherwise, they shall be paid the equivalent of one
month basic salary for every year of service or the equivalent nearest
fraction thereof favorable to them on the basis of highest salary
received, but in no case shall such payment exceed the equivalent of
12 months salary.
No court or administrative body shall issue any writ or preliminary
junction or restraining order to enjoin the separation/replacement of
any officer or employee affected under this Executive Order.
Section 67 — All laws, ordinances, rules, regulations and other
issuances or parts thereof, which are inconsistent with this Executive
Order, are hereby repealed or modified accordingly.
xxx         xxx         xxx (Emphasis ours)
On 2 February 1987, the present Constitution took effect (De Leon, et al., vs.
Esguerra, G.R. No. 78059, August 31, 1987153 SCRA 602). Reorganization
in the Government service pursuant to Proclamation No. 3, supra, was
provided for in its Section 16, Article XVIII entitled Transitory Provisions,
reading:
Section 16. Career civil service employees separated from the
service not for cause but as a result of the reorganization pursuant to
Proclamation No. 3 dated March 25, 1986 and the reorganization
following the ratification of this Constitution shall be entitled to
appropriate separation pay and to retirement and other benefits
accruing to them under the laws of general application in force at the
time of their separation. In lieu thereof, at the option of the
employees, they may be considered for employment in the
Government or in any of its subdivisions, instrumentalities, or
agencies, including government owned or controlled corporations and
their subsidiaries. Ms provision also applies to career officers whose
resignation, tendered in line with the existing policy, has been
accepted.
On 24 May 1987 the then Commissioner of Customs, Alexander A. Padilla,
transmitted to the Department of Finance for approval the proposed "position
structure and staffing pattern" of the Bureau of Customs. Said Department
gave its imprimatur. Thereafter, the staffing pattern was transmitted to and
approved by the Department of Budget and Management on 7 September
1987 for implementation. Under the old staffing pattern, there were 7,302
positions while under the new staffing pattern, there are 6,530 positions CSC
Resolution in CSC Case No. 1, dated 20 September 1988, pp. 3-4).
On 22 September 1987, Salvador M. Mison assumed office as Commissioner
of Customs.
On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the
Implementation of Reorganization Executive Orders" was issued reading,
insofar as revelant to these cases, as follows:
It is my concern that ongoing process of government reorganization
be conducted in a manner that is expeditious, as well as sensitive to
the dislocating consequences arising from specific personnel
decisions.
The entire process of reorganization, and in particular the process of
separation from service, must be carried out in the most humane
manner possible.
For this purpose, the following guidelines shall be strictly followed:
1. By October 21, 1987, all employees covered by
the Executive Orders for each agency on
reorganization shall be:
a. informed of their reappointment or
b. offered another position in the same
department/ agency or
c. informed of their termination.
 2. In the event of an offer for a lower position, there
will be no reduction in the salary.
xxx         xxx         xxx
4. Each department/agency shall constitute a
Reorganization Appeals Board at the central office,
on or before October 21, 1987, to review or
reconsider appeals or complaints relative to
reorganization. All cases submitted to the Boards
shall be resolved subject to the following guidelines:
a. publication or posting of the appeal procedure
promulgated by the Department Secretary;
b. adherence to due process;
c. disposition within 30 days from submission of the
case;
d written notification of the action taken and the
grounds thereof.
Action by the Appeals Review Board does not preclude
appeal to the Civil Service Commission.
5. Placement in the new staffing pattern of incumbent
personnel shall be completed prior to the hiring of
new personnel, if any.
xxx         xxx         xxx (Emphasis ours)
On 25 November 1987 Commissioner Mison wrote the President requesting a
grace period until the end of February 1988 within which to completely
undertake the reorganization of the Bureau of Customs pursuant to Executive
Order No. 127 dated 30 January 1987. Said request was granted in a letter-
reply by Executive Secretary Catalino Macaraig, Jr., dated 22 December
1987.
On 6 January 1988, within the extended period requested, Bureau of
Customs Memorandum "Re: Guidelines on the Implementation of
Reorganization Executive Orders" was issued in the same tenor as the
Malacanang Memorandum of 2 October 1987, providing inter alia:
To effectively implement the reorganization at the Bureau of
Customs, particularly in the selection and placement of personnel,
and insure that the best qualified and most competent personnel in
the career service are retained, the following guidelines are hereby
prescribed for the guidance of all concerned
1. By February 28, 1988 all employees covered by Executive
Order No. 127 and the grace period extended to the Bureau
of Customs by the President of the Philippines on
reorganization shall be:
a. informed of their reappointment, or
b. offered another position in the same department or
agency or
c. informed of their termination.
2. In the event of termination, the employee shall:
a. be included in a consolidated list compiled by the
Civil Service Commission. All departments who are
recruiting shall give preference to the employees in
the list; and
b. continue to receive salary and benefits until
February 28, 1988, and
c. be guaranteed the release of separation benefits
within 45 days from termination and in no case later
than June 15, 1988.
xxx         xxx         xxx (Emphasis supplied)
It is to be noted that paragraph 1 above and its sub-sections reproduced
verbatim the Malacanang Guidelines of 2 October 1987 in that the employees
concerned were merely to be informed of their termination.
On 28 January 1988 Commissioner Mison addressed identical letters of
termination to Bureau of Customs officers and employees effective on 28
February 1988.
As of 18 August 1988, Commissioner Mison appointed five hundred twenty-
two (522) officials and employees of the Bureau of Customs (CSC Resolution
in CSC Case No. 1, dated 20 September 1988, p. 6). In fact, in a letter dated
27 January 1988, Commissioner Mison recommended Jose M. Balde for
appointment to President Aquino as one of three (3) Deputy Commissioners
under Executive Order No. 127.
In the interim, during the pendency of these Petitions, Republic Act No. 6656,
entitled "An Act to Protect the Security of Tenure of Civil Service Officers and
Employees in the Implementation of Government Reorganization" was
passed by Congress on 9 June 1988. The President signed it into law on 10
June 1988 and the statute took effect on 29 June 1988.
On 20 June 1988 Motions were filed, in these cases pending before this
Court, invoking the provisions of Republic Act No. 6656. The relevant
provisions thereof read:
SECTION 1. It is hereby declared the policy of the State to protect
the security of tenure of civil service officers and employees in the
reorganization of the various agencies of the National government ....
SECTION 2. No officer or employee in the career service shall be
removed except for a valid cause and after due notice and hearing. A
valid cause for removal exists when, pursuant to a bona fide
reorganization, a position has been abolished or rendered redundant
or there is a need to merge, divide, or consolidate positions in order
to meet the exigencies of the service, or other lawful causes allowed
by the Civil Service Law. The existence of any or some of the
following circumstances may be considered as evidence of bad faith
in the removals made as a result of reorganization, giving rise to a
claim for reinstatement or reappointment by an aggrieved party:
(a) Where there is a significant increase in the number of
positions in the new staffing pattern of the department or
agency concerned;
(b) Where an office is abolished and another performing
substantially the same functions is created;
(c) Where incumbents are replaced by those less qualified in
terms of status of appointment, performance and merit;
(d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified offices
perform substantially the same functions as the original
offices;
(e) Where the removal violates the order of separation
provided in Section 3 hereof.
xxx         xxx         xxx
SECTION 9. All officers and employees who are found by the Civil
Service Commission to have been separated in violation of the
provisions of this Act, shall be ordered reinstated or reappointed as
the case may be without loss of seniority and shall be entitled to full
pay for the period of separation. Unless also separated for cause, all
officers and employees, including casuals and temporary employees,
who have been separated pursuant to reorganization shall, if entitled
thereto, be paid the appropriate separation pay and retirement and
other benefits under existing laws within ninety (90) days from the
date of the effectivity of their separation or from the date of the
receipt of the resolution of their appeals as the case may be:
Provided, That application for clearance has been filed and no action
thereon has been made by the corresponding department or agency.
Those who are not entitled to said benefits shall be paid a separation
gratuity in the amount equivalent to one (1) month salary for every
year of service. Such separation pay and retirement benefits shall
have priority of payment out of the savings of the department or
agency concerned.
xxx         xxx         xxx
SECTION 11. The executive branch of the government shall
implement reorganization schemes within a specified period of time
authorized by law.
In the case of the 1987 reorganization of the executive branch, all
departments and agencies which are authorized by executive orders
promulgated by the President to reorganize shall have ninety (90)
days from the approval of this Act within which to implement their
respective reorganization plans in accordance with the provisions of
this Act.
xxx         xxx         xxx
SECTION 13. All laws, rules and regulations or parts thereof,
inconsistent with the provisions of this Act are hereby repealed or
modified accordingly. The rights and benefits under this Act shall be
retroactive as of June 30, 1987.
xxx xxx xxx (Emphasis ours)
Given the foregoing statutory backdrop, the issues can now be addressed.
Scope of Section 16, Art. XVIII, 1987 Constitution
Crucial to the present controversy is the construction to be given to the
abovementioned Constitutional provision (SECTION 16, for brevity), which
speaks of.
Career civil service employees separated from the service not for
cause
but as a result of the reorganization pursuant to Proclamation No. 3
dated March 25, 1986
and the reorganization following the ratification of this Constitution ...
(paragraphing supplied).
To our minds, SECTION 16 clearly recognizes (1) the reorganization
authorized by Proclamation No. 3; (2) that such separation is NOT
FOR CAUSE but as a result of the reorganization pursuant to said
Proclamation; and (3) that the reorganization pursuant to
Proclamation No. 3 may be continued even after the ratification of the
1987 Constitution during the transition period.
Separation NOT FOR CAUSE
The canon for the removal or suspension of a civil service officer or employee
is that it must be FOR CAUSE. That means a guarantee of both procedural
and substantive due process. Basically, procedural due process would
require that suspension or dismissal come only after notice and hearing.
Substantive due process would require that suspension or dismissal be 'for
cause'." Bernas The Constitution of the Republic of the Philippines: A
Commentary, Vol. II, First Edition, 1988, p. 334)
The guarantee of removal FOR CAUSE is enshrined in Article IX-B, Section
2(3) of the 1987 Constitution, which states that 'No officer or employee of the
civil service shall be removed or suspended except FOR CAUSE provided by
law."
There can be no question then as to the meaning of the phrase FOR CAUSE.
It simply means the observance of both procedural and substantive due
process in cases of removal of officers or employees of the civil service.
When SECTION 16 speaks, therefore, of separation from the service NOT
FOR CAUSE, it can only mean the diametrical opposite. The constitutional
intent to exempt the separation of civil service employees pursuant to
Proclamation No. 3 from the operation of Article IX-B, Section 2(3), becomes
readily apparent. A distinction is explicitly made between removal FOR
CAUSE, which as aforestated, requires due process, and dismissal NOT
FOR CAUSE, which implies that the latter is not bound by the "fetters' of due
process.
It is obviously for that reason that Section 16 grants separation pay and
retirement benefits to those separated NOT FOR CAUSE but as a result of
the reorganization precisely to soften the impact of the non-observance of
due process. "What is envisioned in Section 16 is not a remedy for arbitrary
removal of civil servants enjoying security of tenure but some form of relief for
members of the career civil service who may have been or may be legally but
involuntarily 'reorganized out' of the service or may have voluntarily resigned
pursuant to the reorganization policy" (ibid., p. 615).
Reorganization Pursuant to Proclamation No. 3 to Continue Transitorily Even
After Ratification
By its very context, SECTION 16 envisages the continuance of the
reorganization pursuant to Proclamation No. 3 even after ratification of the
Constitution and during the transition period. The two [2] stages
contemplated, namely, (1) the stage before and (2) after ratification, refer to
the same nature of separation "NOT FOR CAUSE but as a result of
Proclamation No. 3." No valid reason has been advanced for a different
treatment after ratification as the majority opines i.e., that separation NOT
FOR CAUSE is allowed before ratification but that, thereafter, separation can
only be FOR CAUSE.
A fundamental principle of Constitutional construction is to assure the
realization of the purpose of the framers of the organic law and of the people
who adopted it.
That the reorganization commenced pursuant to Proclamation No. 3 was
envisioned to continue even after the ratification of the 1987 Constitution, at
least transitorily, is evident from the intent of its authors discoverable from
their deliberations held on 3 October 1986 and evincing their awareness that
such reorganization had not as yet been fully implemented. Thus:
Mr. PADILLA. Mr. Presiding Officer, on lines 2 to 5 is the clause
'pursuant to the provisions of Article III of Proclamation No. 3, issued
on March 25, 1986, and the reorganization.' Are those words
necessary? Can we not just say 'result of the reorganization following
the ratification of this Constitution'? In other words, must we make
specific reference to Proclamation No. 3?
 Mr. SUAREZ. Yes. I think the committee feels that is necessary,
because in truth there has been a reorganization by virtue of
Proclamation No. 3. In other words, there are two stages of
reorganization covered by this section.
Mr. PADILIA. I understand there is a reorganization committee
headed by a minister?
Mr. SUAREZ. Philippine Commission on Government
Reorganization.
Mr. PADILLA. But whether that has already been implemented or not,
I do not believe in it. There has been a plan, but I do not think it has
been implemented. If we want to include any previous reorganization
after or before the ratification, why do we not just say reorganization
before or after the ratification' to simplify the provision and eliminate
two-and-a-half sentences that may not be necessary? And as a result
of the reorganization, if the committee feels there has been
reorganization before ratification and there be reorganization after,
we just say 'before or after the ratification of this Constitution.
Mr. SUAREZ. Something like this as a result of the reorganization
effected before or after the ratification of the Constitution on the
understanding, with the statement into the records, that this would be
applicable to those reorganized out pursuant to the Freedom
Constitution also.
Mr. PADILLA. That is understood if there has been a reorganization
before the ratification or a reorganization after the ratification."
(RECORDS of the Constitutional Commission, Vol. 5, p. 416)
(Emphasis provided)
It should also be recalled that the deadline for the reorganization under
Proclamation No. 3 was "one year from February 25, 1986" (Article III,
Section 2), or up to February 24, 1987. Executive Order No. 17 itself provided
that the review/assessment of personnel be completed "not later than
February 24, 1987." But, confronted with the reality of the ratification of the
Constitution before that deadline without reorganization having been
completed, there was need for a provision allowing for its continuance even
after ratification and until completed. It was also to beat that deadline that EO
127 and similar issuances, providing for the reorganization of departments of
government, were all dated 30 January 1987 or prior to the plebiscite held on
2 February 1987. The intent to continue and complete the reorganizations
started is self- evident in SECTION 16.
In Jose vs. Arroyo, et al. (G.R. No. 78435, August 11, 1987), which was a
Petition for certiorari and Prohibition to enjoin the implementation of Executive
Order No. 127, we recognized that the reorganization pursuant to
Proclamation No. 3 as mandated by SECTION 16, was to continue even after
ratification when we stated:
The contention of petitioner that EO No. 127 is violative of the
provision of the 1987 Constitution guaranteeing career civil service
employees security of tenure overlooks the provision of Section 16,
Art. XVIII (Transitory Provisions) which explicitly authorizes the
removal of career civil service employees not for cause but as a
result of the reorganization pursuant to Proclamation No. 3 dated
March 25, 1986 and the reorganization following the ratification of the
Constitution. By virtue of said provision, the reorganization of the
Bureau of Customs under Executive Order No. 127 may continue
even after the ratification of this Constitution and career civil service
employees may be separated from the service without cause as a
result of such reorganization. (Emphasis ours)
With due respect to the majority, we disagree with its conclusion that the
foregoing pronouncement is mere "obiter dictum."
An obiter dictum or dictum has been defined as a remark or opinion
uttered, by the way. It is a statement of the court concerning a
question which was not directly before it (In re Hess 23 A. 2d. 298,
301, 20 N.J. Misc. 12). It is language unnecessary to a decision, (a)
ruling on an issue not raised, or (an) opinion of a judge which does
not embody the resolution or determination of the court, and is made
without argument or full consideration of the point (Lawson v. US,
176 F2d 49, 51, 85 U.S. App. D.C. 167). It is an expression of opinion
by the court or judge on a collateral question not directly involved,
(Crescent Ring Co. v. Travelers Indemnity Co. 132 A. 106, 107, 102
N.J. Law 85) or not necessary for the decision Du Bell v. Union
Central Life Ins. Co., 29, So. 2d 709, 712; 211 La. 167).
In the case at bar, however, directly involved and squarely before the Court
was the issue of whether EO 127 violates Section 2(3) of Article IX-B of the
1987 Constitution against removal of civil service employees except for
cause." Petitioner batted for the affirmative of the proposition, while
respondents contended that "removal of civil service employees without
cause is allowed not only under the Provisional Constitution but also under
the 1987 Constitution if the same is made pursuant to a reorganization after
the ratification of the Constitution."
It may be that the Court dismissed that Petition for being premature,
speculative and purely anticipatory" inasmuch as petitioner therein had "not
received any communication terminating or threatening to terminate his
services." But that was only one consideration. The Court still proceeded to
decide all the issues adversatively contested by the parties, namely "1) that
the expiration date of February 25, 1 987 fixed by Section 2 of Proclamation
No. 3 on which said Executive order is based had already lapsed; 2) that the
Executive Order has not been published in the Official Gazette as required by
Article 2 of the Civil Code and Section 1 1 of the Revised Administrative
Code; and 3) that its enforcement violates Section 2(3) of Article IX B of the
1987 Constitution against removal of civil service employees except for
cause."
The ruling of the Court, therefore, on the Constitutional issues presented,
particularly, the lapse of the period mandated by Proclamation No. 3, and the
validity of EO 127, cannot be said to be mere "obiter." They were ultimate
issues directly before the Court, expressly decided in the course of the
consideration of the case, so that any resolution thereon must be considered
as authoritative precedent, and not a mere dictum (See Valli v. US, 94 F2d
687 certiorari granted 58 S. Ct. 760, 303 U.S. 82 L. Ed. 1092; See also
Weedin v. Tayokichi Yamada 4 F. (2d) 455).lâwphî1.ñèt Such resolution
would not lose its value as a precedent just because the disposition of the
case was also made on some other ground.
.....And this rule applies as to all pertinent questions although only
incidentally involved, which are presented and decided in the regular
course of the consideration of the case, and lead up to the final
conclusion (Northern Pac. Ry Co. v. Baker, D.C. Wash., 3 F. Suppl.
1; See also Wisconsin Power and Light Co. v. City of Beloit 254 NW
119; Chase v. American Cartage Co. 186 N.W. 598; City of Detroit, et
al. v. Public Utilities Comm. 286 N.W. 368). Accordingly, a point
expressly decided does not lose its value as a precedent because the
disposition of the case is made on some other ground. (Wagner v.
Com Products Refining Co. D.C. N.J. 28 F 2d 617) Where a case
presents two or more points, any one of which is sufficient to
determine the ultimate issue, but the court actually decides all such
points, the case is an authoritative precedent as to every point
decided, and none of such points can be regarded as having merely
the status of a dictum (See U.S. Title Insurance and Trust Co., Cal.,
44 S. Ct. 621, 265 U.S. 472, 68 L. Ed. 1110; Van Dyke v. Parker 83
F. (2d) 35) and one point should not be denied authority merely
because another point was more dwelt on and more fully argued and
considered. (Richmond Screw Anchor Co. v. U.S. 48 S. Ct. 194, 275
U.S. 331, 72 L. Ed. 303)"
It is true that in Palma-Fernandez vs. de la Paz (G.R. No. 78946, April 15,
1986, 160 SCRA 751), we had stated:
The argument that, on the basis of this provision (Section 26 of
Executive Order No. 119, or the 'Reorganization Act of the Ministry of
Health'), petitioner's term of office ended on 30 January 1987 and
that she continued in the performance of her duties merely in a hold-
over capacity and could be transferred to another position without
violating any of her legal rights, is untenable. The occupancy of a
position in a hold-over capacity was conceived to facilitate
reorganization and would have lapsed on 25 February 1987 (under
the Provisional Constitution), but advanced to 2 February 1987 when
the 1987 Constitution became effective (De Leon, et al., vs. Hon.
Esguerra, et al., G.R. No. 78059, 31 August 1987, 153 SCRA 602).
After the d date the provisions of the latter on security of tenure
govern.
The factual situation in the two cases, however, radically differ. In the cited
case, Dra. Palma-Fernandez, the petitioner, had already been extended a
permanent appointment as Assistant Director for Professional Services of the
East Avenue Medical Center but was still being transferred by the Medical
Center Chief to the Research Office against her consent. Separation from the
service as a result of reorganization was not involved. The question then
arose as to whether the latter official had the authority to transfer or whether
the power to appoint and remove subordinate officers and employees was
lodged in the Secretary of Health. Related to that issue was the vital one of
whether or not her transfer, effected on 29 May 1987, was tantamount to a
removal without cause. Significant, too, is the fact that the transfer was
basically made "in the interest of the service" pursuant to Section 24(c) of PD
No. 807, or the Civil Service Decree, and not because she was being
reorganized out by virtue of EO 119 or the "Reorganization Act of the Ministry
of Health," although the said Act was invoked after the fact. And so it was that
SECTION 16 was never mentioned, much less invoked in the Palma-
Fernandez case.
Finally, on this point, it is inaccurate for the majority to state that there were
no reorganization orders after ratification. There were, namely, EO 181
(Reorganization Act of the Civil Service Commission), June 1, 1987; EO 193
(Reorganization Act of the Office of Energy Affairs), June 10, 1987; EO 230
(Reorganization Act of NEDA), July 22, 1987; EO 262 (Reorganization Act of
the Department of Local Government), July 25, 1987; EO 297
(Reorganization Act of the Office of the Press Secretary), July 25, 1987.
The Element of Good Faith
The majority concedes that reorganization can be undertaken provided it be
in good faith but concludes that Commissioner Mison was not in good faith.
The aforesaid conclusion is contradicted by the records.
Executive Order No. 127, dated 30 January 1987, specifically authorized the
reorganization of the Bureau of Customs "structurally and functionally" and
provided for the abolition of all units and positions thereof not included in the
structural organization S election 55).
As stated heretofore, it was the former Commissioner of Customs, Alexander
A. Padilla who, on 24 May 1987, transmitted to the Department of Finance for
approval the proposed "position structure and staffing pattern" of the Bureau
of Customs. This was approved by the Department of Finance. Thereafter, it
was transmitted to and approved by the Department of Budget and
Management on 7 September 1987 for implementation. Under the old staffing
pattern, there were 7,302 positions while under the new staffing pattern, there
are 6,530 positions.
On 2 October 1987 "Malacanang Memorandum Re: Guidelines on the
Implementation of Reorganization Executive Orders" provided:
By October 21, 1987, all employees covered by the Executive orders
for each agency on reorganization shall be:
a. informed of their reappointment, or
b. offered another position in the same department or
agency, or
c. informed of their termination. (emphasis supplied)
On 25 November 1987 Commissioner Mison asked for and was granted by
the President an extension up to February 1988 within which to completely
undertake the reorganization of the Bureau of Customs.
On 6 January 1988, he issued Bureau of Customs Memorandum "Re
Guidelines on the Implementation of Reorganization Executive Orders"
reiterating the above- quoted portion of the Malacanang Memorandum of 2
October 1987. Pursuant thereto, on 28 January 1988, Commissioner Mison
addressed uniform letters of termination to the employees listed on pages 15,
16 and 17 of the majority opinion, effective on 28 February 1988, within the
extended period granted.
The records further show that upon Commissioner Mison's official inquiry,
Secretary of Justice Sedfrey A. Ordoñ;ez, rendered the following Opinion:
. . . It is believed that customs employees who are reorganized out in
the course of the implementation of E.O. No. 127 (reorganizing the
Department of Finance) need not be informed of the nature and
cause of their separation from the service. It is enough that they be
'informed of their termination' pursuant to section 1(c) of the
Memorandum dated October 2, 1987 of President Aquino, which
reads:
1. By October 21, 1987, all employees covered by the
Executive orders for each agency on reorganization shall be:
xxx         xxx         xxx
c) Informed of their terminations.
The constitutional mandate that 'no officer or employee of the civil
service shall be renewed or suspended except for cause as provided
by law' (Sec. 2(4) (sic), Article IX-B of the 1987 Constitution) does not
apply to employees who are separated from office as a result of the
reorganization of that Bureau as directed in Executive Order No. 127.
xxx         xxx         xxx
Regarding your (third) query, the issue as to the constitutionality of
Executive Order No. 127 is set at rest, after the Supreme Court
resolved to dismiss the petition for certiorari questioning its
enforceability, for lack of merit (see Jose vs. Arroyo, et al., supra).
(Opinion No. 41, s. 1988, March 3, 1988) (Emphasis supplied)
The former Chairman of the Civil Service Commission, Celerina G. Gotladera
likewise periodically consulted by Commissioner Mison, also expressed the
opinion that "it is not a prerequisite prior to the separation of an employee
pursuant to reorganization that he be administratively charged." (Annex 16, p.
411, Rollo, G.R. No. 85310)
Moreover, the records show that the final selection and placement of
personnel was done by a Placement Committee, one of whose members is
the Head of the Civil Service Commission Field Office, namely, Mrs.
Purificacion Cuerdo The appointment of employees made by Commissioner
Mison was based on the list approved by said Placement Committee.
But the majority further faults Mison for defying the President's directive to
halt further layoffs as a consequence of reorganization, citing OP Memo of 14
October 1987, reading:
 Further to the Memorandum dated October 2, 1987 on the same
subject, I have ordered that there will be no further layoffs this year of
personnel as a result of the government reorganization. (p. 45,
Decision)
The foregoing, however, must be deemed superseded by later developments,
namely, the grant to Commissioner Mison by the President on 22 December
1987 of a grace period until the end of February 1988 within which to
completely undertake the reorganization of the Bureau of Customs, which
was, in fact, accomplished by 28 February 1988.
To further show lack of good faith, the majority states that Commissioner
Mison failed to observe the procedure laid down by EO 17, supra, directing
inter alia that a notice of separation be issued to an employee to be
terminated indicating therein the reason/s or ground/s for such separation.
That requirement, however, does not appear in Section 59 of EO 127, which
provides on the contrary "that those incumbents whose positions are not
included in the new position structure and staffing pattern of the Ministry or
who are not reappointed shall be deemed separated from the service." The
right granted by EO 17 to an employee to be informed of the ground for his
separation must be deemed to have been revoked by the repealing clause of
EO 127 (Section 67) providing that "all laws, ordinances or parts thereof,
which are inconsistent with this Executive Order, are hereby repealed and
modified accordingly."
Moreover, Section 11 of EO 17 explicitly excepts from its coverage a
reorganization pursuant to EO 5. Thus
The Executive Order shall not apply to elective officials or those
designated to replace them, presidential appointees, casual and
contractual employees, or officials and employees removed pursuant
to desciplinary proceedings under the Civil Service law and rules, and
to those laid off as a result of reorganization undertaken pursuant to
Executive Order No. 5. (Emphasis ours)
That EO 127 was issued pursuant to or in implementation of EO 5, is shown
by its introductory portion reading:
Recalling that the reorganization of the government is mandated
expressly by Article II, Section 1 (a) and Article III of the Freedom
Constitution;
Having in mind that pursuant to Executive order No. 5 (1986), it is
directed that the necessary and proper changes in the organizational
and functional structures of the government, its agencies and
instrumentalities, be effected in order to promote efficiency and
effectiveness in the delivery of public service; (Italics supplied)
Constitutionality of Republic Act No. 6656
The majority also relies on Republic Act No. 6656 entitled an "Act to Protect
the Security of Tenure of Civil Service Officers and Employees in the
Implementation of Government Reorganization," particularly Section 2
thereof, to test the good faith of Commissioner Mison.
We are of the view, however, that in providing for retroactivity in its Section
13, RA 6656 clashes frontally with SECTION 16.
1) SECTION 16 clearly recognizes that career service employees separated
from the service by reason of the "complete reorganization of the
government" pursuant to Proclamation No. 3 may be separated NOT FOR
CAUSE. And yet, RA 6656 requires the exact opposite — separation FOR
CAUSE. It would not be remiss to quote the provision again:
SEC. 2. No officer or employee in the career service shall be
removed except for a valid cause and after due notice and hearing. A
valid cause for removal exist when, pursuant to a bona fide
reorganization, a position has been abolished or rendered redundant
or there is a need to merge, divide, or consolidate positions in order
to meet the exigencies of the service, or other lawful causes allowed
by the Civil Service law. The existence of any or some of the
following circumstances may be considered as evidence of bad faith
in the removals made as a result of reorganization, giving rise to a
claim for reinstatement or reappointment by an aggrieved party: (a)
Where there is a significant increase in the number of positions in the
new staffing pattern of the department or agency concerned; (b)
Where an office is abolished and another performing substantially the
same functions is created; (c) Where incumbents are replaced by
those less qualified in terms of status of appointment, performance
and merit; (d) Where there is a reclassification of offices in the
department or agency concerned and the reclassified offices perform
substantially the same functions as the original offices; (e) Where the
removal violates the order of separation provided in Section 3 hereof.
(Republic Act No. 6156)
The standards laid down are the "traditional" criteria for removal of employees
from the career service, e.g. valid cause, due notice and hearing, abolition of,
or redundancy of offices. Proclamation No. 3, on the other hand, effectuates
the "progressive" type of reorganization dictated by the exigencies of the
historical and political upheaval at the time. The "traditional" type is limited in
scope. It is concerned with the individual approach where the particular
employee involved is charged administratively and where the requisites of
notice and hearing have to be observed. The "progressive" kind of
reorganization, on the other hand, is the collective way. It is wider in scope,
and is the reorganization contemplated under SECTION 16.
2) By providing for reinstatement in its Section 9, RA 6656 adds a benefit not
included in SECTION 16. The benefits granted by the latter provision to
employees separated NOT FOR CAUSE but as a consequence of
reorganization are "separation pay, retirement, and other benefits accruing to
them under the laws of general application in force at the time of their
separation." The benefit of reinstatement is not included. RA 6656, however,
allows reinstatement. That it cannot do because under SECTION 16, it is not
one of the laws "in force at the time of their separation."
The Constitution is the paramount law to which all laws must conform. It is
from the Constitution that all statutes must derive their bearings. The
legislative authority of the State must yield to the expression of the sovereign
will. No statutory enactment can disregard the Charter from which it draws its
own existence (Phil. Long Distance Telephone Co. v. Collector of Internal
Revenue, 90 Phil. 674 [1952]). But, that is exactly what RA 6656 does in
providing for retroactivity — it disregards and contravenes a Constitutional
imperative. To save it, it should be applied and construed prospectively and
not retroactively notwithstanding its explicit provision. Then, and only then,
would it make good law.
Effects of Reorganization
To be sure, the reorganization could effect the tenure of members of the
career service as defined in Section 5, Article IV of Presidential Decree No.
807, and may even result in the separation from the office of some
meritorious employees. But even then, the greater good of the greatest
number and the right of the citizenry to a good government, and as they
themselves have mandated through the vehicle of Proclamation No. 3,
provide the justification for the said injury to the individual. In terms of values,
the interest of an employee to security of tenure must yield to the interest of
the entire populace and to an efficient and honest government.
But a reorganized employee is not without rights. His right lies in his past
services, the entitlement to which must be provided for by law. EO 127
provides for the same in its Section 59, and so does SECTION 16 when the
latter specified that career civil service employees separated from the service
not for cause:
shall be entitled to appropriate separation pay and to retirement and
other benefits accruing to them under the laws of general application
in force at the time of their separation. In lieu thereof, at the option of
the employees, they may be considered for employment in the
Government or in any of its subdivisions, instrumentalities, or
agencies, including government-owned or controlled corporations
and their subsidiaries. This provision also applies to career officers
whose resignation, tendered in line with the existing policy, has been
accepted.
This is a reward for the employee's past service to the Government. But this
is all There is no vested property right to be reemployed in a reorganized
office.
The right to an office or to employment with government or any of its
agencies is not a vested property right, and removal therefrom will
not support the question of due process" Yantsin v. Aberdeen, 54
Wash 2d 787, 345 P 2d 178). A civil service employee does not have
a constitutionally protected right to his position, which position is in
the nature of a public office, political in character and held by way of
grant or privilege extended by government; generally he has been
held to have no property right or vested interest to which due process
guaranties extend (See Taylor v. Beckham 178 U.S. 548, 44 L Ed.
1187; Angilly v. US CA2 NY 199 F 2d 642; People ex. rel. Baker v.
Wilson, 39 III App 2d 443, 189 NE 2d 1; Kelliheller v. NY State Civil
Service Com 21 Misc 2d 1034, 194 NYS 2d 89).
To ensure, however, that no meritorious employee has been separated from
the service, there would be no harm, in fact, it could do a lot of good, if the
Commissioner of Customs reviews the evaluation and placements he has so
far made and sees to it that those terminated are included in a consolidated
list to be given preference by departments who are recruiting (Section 2[a],
BOC Memorandum, January 6,1988).
Conclusion
Premises considered, and subject to the observation hereinabove made, it is
our considered view that the separation from the service "NOT FOR CAUSE
but as a result of the reorganization pursuant to Proclamation No. 3 dated
March 25, 1986" of the affected officers and employees of the Bureau of
Customs should be UPHELD, and the Resolutions of the Civil Service
Commission, dated 30 June 1988, 20 September 1988, and 16 November
1988 should be SET ASIDE for having been issued in grave abuse of
discretion.
 13
Republic Act No. 6656, in so far as it provides for retroactivity, should be Id., 317.
declared UNCONSTITUTIONAL for being repugnant to the letter and spirit of
Section 16, Article XVIII of the 1987 Constitution. 14
Id., 8.

Fernan, C.J., Narvasa, Feliciano, Regalado, JJ., concur. 15

Rollo, G.R. No. 81954, 24; rollo, G.R. No. 81967, 27; rollo, G.R.
No. 82023, 37; see also rollo, id., G.R. No. 85310, 8.

16
The last eighteen are the successful employees in the appeal with
Footnotes the Civil Service Commission (subject of G.R. No. 85310) whose
reinstatement the Commission ordered pending further proceedings
1
Proc No. 3, (PROVISIONAL CONST.), art. II, sec. l(a). herein. We consider them impleaded as parties respondents in G.R.
No. 85310. Also, the Customs employees involved have been
2 impleaded as parties in more than one petition either as petitioners or
Supra, art. III, secs. 1-4.
respondents.
3
Proc. No. 1 (1986). 17
Rollo, id., G.R. No. 85310, 8; according, however, to the petitioners
4
in G.R. 86241, a total of 397 employees were terminated. id., 260;
CONST. (1986), supra, art. 1, sec. 3. former Sen. Ambrosio Padilla, amicus curiae, placed the figure at 493
(G.R. No. 85310, id., 993).
5
Supra.
18
Rollo, id., G.R. No. 85310, 79; also rollo, G.R. No. 85335, 36.
6
The various "OIC cases", among them, Sots v. Pimentel, G.R. No.
73970, April 10, 1986; Palma v. Fortich, G.R. No. 59679, January 29, 19
Rollo, id., G.R. No. 85310, 424
1987; Ignacio v. Banata, G.R. No. 74720, August 31, 1987;
Association of Barangay Councils of Las Pinas v. Juntilla, G.R. No. 20
Rollo, G.R. No. 86241, 144
78965, November 17, 1987; Ramos v. Lorenzana, G.R. No. 80282,
November 26, 1987; Del Monte v. Ferrer, G.R. 78963, January 13,
21
1988; Yasay v. Flores, G.R. No. 81047, January 7, 1988; ending with Senen Dimaguila and Romulo Badillo earlier instituted in this Court
De Leon v. Esguerra, No. 78059, August 31, 1987, 153 SCRA 602. G.R. Nos. 81968 and 81955 but were allowed, by our Resolution of
July 5, 1988, to withdraw and join the appeal subject of the Civil
7 Service Commission's Resolution of November 11, 1988, See rollo,
Jose v. Arroyo, G.R. No. 78435, August 11, 1987; Palma Fernandez
G.R. No. 82023, 169
v. De la Paz, No. 78496, August 15, 1988, 160 SCRA 751.
22
8 84 O.G. Supp. 1-4 (June, 1988).
Exec. Ord. No. 17, sec. 3.
23
9 Supra, 3.
88 O.G. 2009-2024 (Apr., 1987).
24
10 CONST. (1987), art. XVIII, sec. 16.
Exec. Ord. No. 127, supra, secs. 33-38.
25
11 This was raised by the Civil Service Commission in G.R. No.
De Leon v. Esguerra, supra. The writer of this opinion dissented,
86241. Failure to exhaust administrative remedies was raised in G.R.
and maintained that the new Constitution was ratified on February 11,
No. 81954 and 81917 by the Solicitor General.
1987.
26
12 Sarmiento III v. Mison, No. L-79974, December 17, 1987, 153
Rollo, G.R. No. 85310, 317-31.
SCRA 549, 551-552.
27 34
Pres. Decree No. 807, sec. 39. The provision reads: "Appeals. — Supra, 271.
(a) Appeals, where allowable, shall be made by the party adversely
affected by the decision within fifteen days from receipt of the 35
Supra.
decision unless a petition for reconsideration is seasonably filed,
which petition shall be decided within fifteen days. Notice of the 36
Aratuc supra, 270.
appeal shall be filed with the disciplining office, which shall forward
the records of the case, together with the notice of appeal, to the 37
appellate authority within fifteen days from filing of the notice of CONST. (1987), supra, art. IX sec. 2(2). To be more precise, the
appeal, with its comment, if any. The notice of appeal shall 1987 Constitution gives the Commission "exclusive original
specifically state the date of the decision appealed from and the date jurisdiction over all [election] contests.'
of receipt thereof. It shall also specifically set forth clearly the grounds
38
relied upon for excepting from the decision; (b) A petition for Supra, art. IX, sec. 7.
reconsideration shall be based only on any of the following grounds:
(1) new evidence has been discovered which materially affects the 39
Aratuc supra, 271; emphasis supplied.
decision rendered; (2) the decision is not supported by the evidence
on record; or (3) errors of law or irregularities have been committed 40
Rep. Act No. 6656, supra, sec. 8.
prejudicial to the interest of the respondent; Provided, That only one
petition for reconsideration shall be entertained." 41
RULES OF COURT, Rule 65, sec. 1.
28
Rep. Act No. 6656, supra, sec. 8. The provision reads: "Sec. 8. An 42
CONST. (1987), art. IX, sec. 7, supra.
officer or employee who is still not satisfied with the decision of the
appointing authority may further appeal with ten (10) days from 43
receipt thereof to the Civil Service Commission which shall render a Phil. American Life Ins. Co. vs. Social Security Com No. L-20383,
decision thereon within thirty (30) days and whose decision shall be May 24, 1967, 20 SCRA 162,
final and executory."
44
Exec. Ord. No. 127, supra, sec. 59.
29
CONST., art. IX, sec, 7. The provision reads: "Sec. 7. Each
45
Commission shall decide by a majority vote of all its Members any Supra.
case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed 46
Rollo, id., G.R. No. 81954, 36.
submitted for decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the rules of the 47
Exec. Ord. No. 127, supra, see. 34; rollo, id., G.R. No. 81954.
Commission or by the Commission itself. Unless otherwise provided
by this Constitution or by law, any decision, order, or ruling of each 48
Commission may be brought to the Supreme Court on certiorari by Exec. Ord. No. 127, supra, sec. 59.
the aggrieved party within thirty days from receipt of a copy thereof.
49
Rollo, id., G.R. No. 81954,12; emphasis in the original.
30
Rollo, id., G.R. No. 85310, 82.
50
CONST. (1986), Supra, art. IX, sec. 2.
31
id., 415.
51
CONST. (1987), supra, art. IXB sec. 2(3).
32
CONST. (1987), supra.
52
August 8, 1986.
33
See Aratuc v. Commission on Elections, Nos. L-49705-09, 49717-
53
21, February 8, 1979, 88 SCRA 251. Supra, sec. 1(a)
54 72
G.R. No. 78435, August 11, 1987. OP Memo (October 14, 1987).

55 73
Supra, 3. Supra, see fn. 7.

56 74
CONST. (1987), supra, art. XVIII, sec. 16. Arroyo, supra, 3.

57 75
Rollo, id., G.R. No. 81954, 216; rollo, id., G.R. No. 81967, 64; rollo, The petitioner was Leonardo Jose, a Collector III at the Bureau of
id., G.R. No. 82023, 76. Customs.

58 76
Supra. Supra, 2.

59 77
See Exec. Ord. No. 17, supra, sec. 1. 55 Phil. 565 (1930).

60 78
Rollo, id., G.R. No. 85310, 18; rollo, id., G.R. No. 86241, 14. Supra.

61 79
Id.; id., 13. Art. III, sec. 1 and art. IX(B) sec. 2(3).

62 80
Id., 37; id., 33. Supra. In Palma-Fernandez, we upheld claims of authority of
tenure in the absence of a bona fide reorganization. In that case,
63
CONST. (1987), art. XVIII, sec. 16, supra. there was no valid abolition of an office but merely, a change in name
of position. We did not foreclose therein the validity of a removal "not
64 for cause," provided that there is a valid reorganization.
See fn. 11.
81
65 Ginson v. Municipality of Murcia, supra; De la Llana v. Alba, supra;
CONST. (1935), art. XVI, sec. 4.
Cruz v. Primicias Jr., supra.
66
CONST. (1973), art. XVII, sec. 9. 82
Palma Fernandez, supra. In that case, the office of "Chief of Clinic'
67
was purportedly abolished and in its place an office of "Assistant
CONST. (1986); art. III, sec. 2, supra. Director for Professional Services" was created. We held that the two
positions "are basically one and the same except for the change of
68
Ginson v. Municipality of Murcia, No. L-46585, February 8, 1988, nomenclature (767.)
157 SCRA 1; De la Llana v. Alba, No. 57883, March 12, 1982, 112
SCRA 294; Cruz v. Primicias Jr., No. L-28573, June 13, 1968, 23 83
Ginson supra; Cruz, supra.
SCRA 998.
**
69
Although as we also said, Executive Order No. 17 itself imposed a
III RECORD OF THE CONSTITUTIONAL COMMISSION, 1615- "cause" for removals under the Freedom Constitution.
1616 (1986).
84
70
Rep. Act No. 6156, supra.
De Leon v. Esguerra, supra; Palma-Fernandez v. De la Paz, supra.
85
71
See G.R. Nos. 81964, 81967, id., 10-11.
Exec. Ord. No. 17, supra.
86
*
G.R. No. 86421, id., 31.
Paradoxically, Executive Order No. 17 would have provided a
"cause" for removal.
 87
OP Memo (Oct., 14, 1987), supra. ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY,
petitioner,
88
See Free Telephone Workers Union v. Minister of Labor and vs.
Employment, No. 58184, October 30, 1981, 1108 SCRA 757. COURT OF APPEALS, CIVIL SERVICE COMMISSION, EDUARDO A. TAN,
LOURDES M. DE GUZMAN, MANUEL CHUA, ANSELMO MATEO,
89 CHRISTOPHER SANTOS, BUENAVENTURA PUNAY, ENRICO
Supra. With respect to Vicente Feria, Jr., the records reveal that his
BANDILLA, FELINO CAMACHO, DANTE E. DEOQUINO, JAIME P. URCIA,
appointment was extended on April 22, 1986. (G.R. No. 81967, id.,
JESUS B. REGONDOLA, ROMUALDO LIBERATO, CESAR FRANCISCO,
7.) For that reason, he cannot be said to be an "incumbent" for
WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO,
purposes of reorganization, to whom a reappointment may be issued.
respondents.
Because his appointment came after the promulgation of the
Freedom Constitution, he is, to all intents and purposes, an appointee
as a result of reorganization. G.R. No. 126354 December 15, 1999

90
Supra, 757. CIVIL SERVICE COMMISSION, petitioner,
vs.
91 THE HON. COURT OF APPEALS and ISMAEL A. MATHAY, JR.,
Supra, sec. 9.
respondents.
92
Supra, sec. 13.
G.R. No. 126366 December 15, 1999
93.
Supra, sec. 2.
ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY,
petitioner,
Melencio-Herrera, J.: vs.
COURT OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C.
1
Executive Orders Nos. 11 6 (Agriculture and Food); 117 Education MARQUEZ, respondents.
Culture and Sports); 119 (Health); 120 (Tourism); 123 (Social Welfare
and Development); 124 (Public Works and Highways); 125  
(Transportation and Communication); 126 (Labor and Employment);
128 (Science and Technology; 129 (Agrarian Reform); 131 (Natural
YNARES-SANTIAGO, J.:
Resources); 132 (Foreign Affairs); and 133 (Trade and Industry).

Before this Court are three, consolidated petitions 1 filed under Rule 45
of the Revised Rules of Court.
The Lawphil Project - Arellano Law Foundation

The facts behind the consolidated petitions are undisputed.

Republic of the Philippines
SUPREME COURT During his term as Mayor of Quezon City, Mr. Brigido R. Simon
Manila appointed private respondents 2 to positions in the Civil Service Unit
("CSU") of the local government of Quezon City. Civil Service Units
were created pursuant to Presidential Decree No. 51 which was
EN BANC allegedly signed into law on November 15 or 16, 1972.

  On February 23, 1990, the Secretary of Justice rendered Opinion No. 33,
stating that Presidential Decree No. 51 was never published in the
G.R. No. 124374 December 15, 1999 Official Gazette. Therefore, conformably with our ruling in Tanada vs.
Tuvera 3 the presidential decree is deemed never "in force or effect and
therefore cannot at present, be a basis for establishment of the
CSUs . . . ." 4
On June 4, 1990, the Civil Service Commission issued Memorandum
Circular No. 30, directing all Civil Service Regional or Field Offices to
recall, revoke and disapprove within one year from issuance of the said
Memorandum, all appointments in CSUs created pursuant to
Presidential Decree No. 51 on the ground that the same never became
law. Among those affected by the revocation of appointments are
private respondents in these three petitions.
For Quezon City CSU employees, the effects of the circular were
temporarily cushioned by the enactment of City Ordinance No. NC-140,
Series of 1990, which established the Department of Public Order and
Safety ("DPOS").
At the heart of these petitions is Section 3 of the Ordinance which
provides:
Sec. 3. The present personnel of the Civil Security Unit,
Traffic Management Unit, Anti-Squatting and
Surveillance and Enforcement Team, and Disaster
Coordinating Council are hereby absorbed into the
department of public order and safety established under
Section one hereof to be given appropriate position titles
without reduction in salary, seniority rights and other
benefits. Funds provided for in the 1990 Budget for the
absorbed offices shall be used as the initial budgetary
allocation of the Department. (Emphasis ours).
Despite the provision on absorption, the regular and permanent
positions in the DPOS were not filled due to lack of funds for the new
DPOS and the insufficiency of regular and permanent positions created.
Mayor Brigido R. Simon remedied the situation by offering private
respondents contractual appointments for the period of June 5, 1991 to
December 31, 1991. The appointments were renewed by Mayor Simon
for the period of January 1, 1992 to June 30, 1992.
On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of
Quezon City. On July 1, 1992, Mayor Mathay again renewed the
contractual appointments of all private respondents effective July 1 to
July 31, 1992. Upon their expiry, these appointments, however, were no
longer renewed.
The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private
respondents' appointments became the seed of discontent from which
these three consolidated petitions grew.
We discuss the merits of the petitions of Mayor Ismael A. Mathay, Jr.
jointly.
G.R. No. 124374 and G.R. No. 126366
After the non-renewal of their appointments, private respondents in
these two petitions appealed to the Civil Service Commission. The CSC
issued separate resolutions holding that the reappointment of private
respondents to the DPOS was automatic, pursuant to the provision on
absorption in Quezon City Ordinance No. NC-140, Series of 1990, 5 and
ordering their reinstatement to their former positions in the DPOS. 6
Petitioner brought petitions for certiorari to this Court, 7 to annul the
resolutions but, in accordance with Revised Administrative Circular No.
1-95, the petition were referred to the Court of Appeals. As stated, the
Court of Appeals dismissed the petitions for certiorari.
In the instant petition for review, petitioner asserts that the Court of
Appeals erred when it ruled that respondent Civil Service Commission
has the authority to direct him to "reinstate" private respondents in the
DPOS.
We agree with petitioner.
The law applicable is B.P. 337 or the old Local Government Code and
not the Local Government Code of 1992 which became effective only on
January 1, 1992, when the material events in this case transpired.
Applying the said law, we find that the Civil Service Commission erred
when it applied the directives of Ordinance NC-140 and in so doing
ordered petitioner to "reinstate" private respondents to positions in the
DPOS. Section 3 of the said Ordinance is invalid for being inconsistent
with B.P. 337. We note that Section 3 of the questioned Ordinance
directs the absorption of the personnel of the defunct CSU into the new
DPOS. The Ordinance refers to personnel and not to positions. Hence,
the city council or sanggunian, through the Ordinance, is in effect
dictating who shall occupy the newly created DPOS positions. However,
a review of the provisions of B.P. 337 shows that the power to appoint
rests exclusively with the local chief executive and thus cannot be
usurped by the city council or sanggunian through the simple expedient
of enacting ordinances that provide for the "absorption" of specific
persons to certain positions.
In upholding the provisions of the Ordinance on the automatic
absorption of the personnel of the CSU into the DPOS without
allowance for the exercise of discretion on the part of the City Mayor,
the Court of Appeals makes the sweeping statement that "the doctrine
of separation of powers is not applicable to local governments." 8 We
are unable to agree. The powers of the city council and the city mayor
are expressly enumerated separately and delineated by B.P. 337.
The provisions of B.P. 337 are clear. As stated above, the power to
appoint is vested in the local chief executive. 9 The power of the city
council or sanggunian, on the other hand, is limited to creating,
consolidating and reorganizing city officers and positions supported by
local funds. The city council has no power to appoint. This is clear from
Section 177 of B.P. 337 which lists the powers of the sanggunian. The
power to appoint is not one of them. Expressio inius est exclusio
alterius. 10 Had Congress intended to grant the power to appoint to both
the city council and the local chief executive, it would have said so in no
uncertain terms.
By ordering petitioner to "reinstate" private respondents pursuant to
Section 3 of the Ordinance, the Civil Service Commission substituted its
own judgment for that of the appointing power. This cannot be done. In
a long line of cases, 11 we have consistently ruled that the Civil Service
Commission's power is limited to approving or disapproving an
appointment. It does not have the authority to direct that an
appointment of a specific individual be made. Once the Civil Service
Commission attests whether the person chosen to fill a vacant position
is eligible, its role in the appointment process necessarily ends. The
Civil Service Commission cannot encroach upon the discretion vested
in the appointing authority.
The Civil Service Commission argues that it is not substituting its
judgment for that of the appointing power and that it is merely
implementing Section 3 of Ordinance NC-140.
The Ordinance refers to the "personnel of the CSU", the identities of
which could not be mistaken. The resolutions of the Civil Service
Commission likewise call for the reinstatement of named individuals.
There being no issue as to who are to sit in the newly created DPOS,
there is therefore no room left for the exercise of discretion. In Farinas
vs. Barba, 12 we held that the appointing authority is not bound to
appoint anyone recommended by the sanggunian concerned, since the
power of appointment is a discretionary power.
When the Civil Service Commission ordered the reinstatement of private
respondents, it technically issued a new appointment. 13 This task, i.e. of
appointment, is essentially discretionary and cannot be controlled even
by the courts as long as it is properly and not arbitrarily exercised by
the appointing authority.
In Apurillo vs. Civil Service Commission, we held that "appointment is
essentially a discretionary power and must be performed by the officer
in which it is vested." 14
The above premises considered, we rule that the Civil Service
Commission has no power to order petitioner Ismael A. Mathay, Jr., to
reinstate private respondents.
Petitioner similarly assails as error the Court of Appeals' ruling that
private respondents should be automatically absorbed in the DPOS
pursuant to Section 3 of the Ordinance.
In its decision of March 21, 1996 the Court of Appeals held:
It is clear however, that Ordinance No. NC-140,
absorbing the "present personnel of the Civil Security
Agent Unit" in the DPOS was earlier enacted, particularly
on March 27, 1990, thus, private respondents were still
holders of de jure appointments as permanent regular
employees at the time, and therefore, by operation of
said Ordinance private respondents were automatically
absorbed in the DPOS effectively as of March 27, 1990. 15
(Emphasis ours.)
The decision is based on the wrong premise.
Even assuming the validity of Section 3 of the Ordinance, the
absorption contemplated therein is not possible. Since the CSU never
legally came into existence, the private respondents never held
permanent positions. Accordingly, as petitioner correctly points out, 16
the private respondents' appointments in the defunct CSU —
were invalid ab initio. Their seniority and permanent
status did not arise since they have no valid
appointment. For then to enter the Civil Service after the
revocation and cancellation of their invalid appointment,
they have to be extended an original appointment,
subject again to the attesting power of the Civil Service
Commission.
 Being then not members of the Civil Service as of June
4, 1991, they cannot be automatically
absorbed/reappointed/appointed/reinstated into the
newly created DPOS. (Emphasis ours).
It is axiomatic that the right to hold public office is not a natural right.
The right exists only by virtue of a law expressly or impliedly creating
and conferring it. 17 Since Presidential Decree 51 creating the CSU never
became law, it could not be a source of rights. Neither could it impose
duties. It could not afford any protection. It did not create an office. It is
as inoperative as though it was never passed.
In Debulgado vs. Civil Service Commission 18 we held that "a void
appointment cannot give rise to security of tenure on the part of the
holder of the appointment."
While the Court of Appeals was correct when it stated that "the abolition
of an office does not mean the invalidity of appointments thereto," 19
this cannot apply to the case at bar. In this case, the CSU was not
abolished. It simply did not come into existence as the Presidential
Decree creating it never became law.
At the most, private respondents held temporary and contractual
appointments. The non-renewal of these appointments cannot therefore
be taken against petitioner. In Romualdez III vs. Civil Service
Commission 20 we treated temporary appointments as follows:
The acceptance by the petitioner of a temporary
appointment resulted in the termination of official
relationship with his former permanent position. When
the temporary appointment was not renewed, the
petitioner had no cause to demand reinstatement
thereto. (Emphasis ours.)
Another argument against the concept of automatic absorption is the
physical and legal impossibility given the number of available positions
in the DPOS and the number of personnel to be absorbed. 21 We note
that Section 1 of Ordinance NC-140 provides:
There is hereby established in the Quezon City
Government the Department of Public Order and Safety
whose organization, structure, duties, functions and
responsibilities are as provided or defined in the
attached supporting documents consisting of eighteen
(18) pages which are made integral parts of this
Ordinance.
A review of the supporting documents shows that Ordinance No. NC-
140 allowed only two slots for the position of Security Officer II with a
monthly salary of P4,418.00 and four slots for the position of Security
Agent with a monthly salary of P3,102.00. The limited number of slots
provided in the Ordinance renders automatic absorption unattainable,
considering that in the defunct CSU there are twenty Security Officers
with a monthly salary of P4,418.00 and six Security Agents with a
monthly salary of P3,102.00. Clearly, the positions created in the DPOS
are not sufficient to accommodate the personnel of the defunct CSU,
making automatic absorption impossible.
Considering that private respondents did not legally hold valid
positions in the CSU, for lack of a law creating it, or the DPOS, for lack
of a permanent appointment to the said agency, it becomes
unnecessary to discuss whether their acceptance of the contractual
appointments constitutes an "abandonment" or "waiver" of such
positions. It escapes us how one can "relinquish" or "renounce" a right
one never possessed. A person waiving must actually have the right
which he is renouncing.
G.R. 126354
In this case, petitioner, Civil Service Commission seeks the reversal of
the decision of the Court of Appeals of July 5, 1996, which overturned
CSC Resolution Nos. 955040 and 932732 and held that the Civil Service
Commission has no authority to compel the mayor of Quezon City to
"reinstate" Jovito C. Labajo to the DPOS.
The standing of petitioner Civil Service Commission to bring this
present appeal is questionable.
We note that the person adversely affected by the Court of Appeals
decision, Jovito C. Labajo has opted not to appeal.
Basic is the rule that "every action must be prosecuted or defended in
the name of the real party in interest." 22 A real party in interest is the
party who stands to be benefited or injured by the judgment in the suit,
or the party entitled to the avails of the suit.
In Ralla vs. Ralla we defined interest as "material interest, an interest in
issue and to be affected by the decree, as distinguished from mere
interest in the question involved, or mere incidental interest." 23 As a
general rule, one having no right or interest to protect cannot invoke the
jurisdiction of the court as a party-plaintiff in an action.
In the case at bar, it is evident that Jovito C. Labajo, not the Civil
Service Commission, is the real party in interest. It is Jovito C. Labajo
who will be benefited or injured by his reinstatement or non-
reinstatement.
We are aware of our pronouncements in the recent case of Civil Service
Commission v. Pedro Dacoycoy 24 which overturned our rulings in
Paredes vs. Civil Service Commission 25 Mendez vs. Civil Service
Commission 26 and Magpale vs. Civil Service Commission. 27 In
Dacoycoy, we affirmed the right of the Civil Service Commission to
bring an appeal as the aggrieved party affected by a ruling which may
seriously prejudice the civil service system.
The aforementioned case, however, is different from the case at bar.
Dacoycoy was an administrative case involving nepotism whose
deleterious effect on government cannot be over emphasized. The
subject of the present case, on the other hand, is "reinstatement."
We fail to see how the present petition, involving as it does the
reinstatement or non-reinstatement of one obviously reluctant to
litigate, can impair the effectiveness of government. Accordingly, the
ruling in Dacoycoy does not apply.
To be sure, when the resolutions of the Civil Service Commission were
brought before the Court of Appeals, the Civil Service Commission was
included only as a nominal party. As a quasi-judical body, the Civil
Service Commission can be likened to a judge who should "detach
himself from cases where his decision is appealed to a higher court for
review." 28
In instituting G.R. No. 126354, the Civil Service Commission
dangerously departed from its role as adjudicator and became an
advocate. Its mandated functions is to "hear and decide administrative
cases instituted by or brought before it directly or on appeal, including
contested appointments and to review decisions and actions of its
offices and agencies," 29 not to litigate.
Therefore, we rule that the Civil Service Commission has no legal
standing to prosecute G.R. No. 126354.
WHEREFORE, the petitions of Ismael A. Mathay in G.R. No. 124374 and
G.R. No. 126366 are GRANTED and the decisions of the Court of
Appeals dated March 21, 1996 and January 15, 1996 are REVERSED and
SET ASIDE.
The petition of the Civil Service Commission in G.R. No. 126354 is
DISMISSED for lack of legal standing to sue. The assailed decision of
the respondent Court of Appeals dated July 5, 1996 is AFFIRMED.
No costs.
SO ORDERED.
Davide, Jr., C. J., Bellosillo, Puno, Kapunan, Mendoza,
Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-
Reyes and De Leon, Jr., JJ., concur.
Melo and Vitug, JJ., in the result.
Footnotes
1 In G.R. No. 124374, petitioner Mayor Mathay questions the
decision of the Court of Appeals which upheld Resolution No.
95-3003 dated April 25, 1995 of the Civil Service Commission
and ordered the reinstatement of private respondents to their
former positions at the Department of Public Order and Safety
("DPOS") under permanent status or to comparable positions in
the said agency.
In G.R. No, 126354, petitioner Civil Service Commission
assails the decision of the Court of Appeals which
annulled and set aside its Resolution Nos. 955040 and
93-2732.
In G.R. No, 126366, the assailed decision of the 15th
Division of the Court of Appeals found no grave abuse of
discretion amounting to lack or excess jurisdiction on
the part of public respondent Civil Service Commission
when it issued Resolution Nos. 92-1974 and 94-0902
ordering petitioner Ismael A. Mathay to reinstate private
respondent Sandy Marquez to a position in the DPOS
without dimunition in salary or position.
2 In G.R. No. 124374 Private respondents are Eduardo A. Tan,
Lourdes M. de Guzman, Manuel Chua, Anselmo Mateo,
Christopher Santos, Buenaventura Punay, Enrico Bandilla,
Felino Camacho, Dante E. Deoquino, Jaime P. Urcia, Jesus B.
Regondola, Romualdo Liberato, Cesar Franciso, William Panti 14 227 SCRA 320 (1994).
Jr., Michael A. Jacinto and Cesar Dacio. In G.R. No. 126366
private respondent is Sandy Marquez. In G.R. No. 126354 there 15 Rollo (G.R. 124374), p. 47.
is no private respondent (Jovito C. Labajo did not appeal from
the order of the Court of Appeals). 16 Rollo (G.R. 12633), p. 32.

3 148 SCRA 446 (1986). 17 Aparri vs. Court of Appeals, 127 SCRA 234 (1984).

4 Opinion No. 33 of the Secretary of Justice, February 1991. 18 263 SCRA 184 (1996).

5 CSC Resolution No. 92-1974 (G.R. No. 126366). 19 Rollo (G.R. 126366), p. 21.

6 CSC Resolution No. 95-3003 (G.R. Jo. 124374). 20 197 SCRA 168 (1991).

7 G.R. Nos. 114320 and 120442. 21 The defunct CSU consisted of 64 positions, to wit:

8 Page 8 of the Fifteenth Division of the Court of Appeals Number of Positions Title of Position Monthly Salary
Decision dated January 15, 1996 citing Sinco. Political Law, 1949
ed. pp. 154-155 citing State vs. City of Maulcato, 136 N.W. 164,
41 L.R.A.N.S. 111; People vs. Provinces 35 Cal. 520. 1 Office Head P12,650.00

9 Sec. 1719 of B.P. 337 provides that, "the city mayor shall . . . 1 Assistant Dept. Head III P11,385.00
appoint in accordance with Civil Service law, rules and
regulations all officers and employees of the city, whose 2 Security Officer IV P8,250.00
appointments are not otherwise provided in this Code."
20 Security Officer II P4,418.00
10 The express mention of one thing in a law will, as a general
rue, mean the exclusion of others not expressly mentioned. This 2 Security Agent II P3,102.00
rule as a guide to probable legislative intent is based upon rules
of logic and the natural workings of the human mind (Tavora vs. 9 Security Agent I P2,752.00
Gavina, 79 Phil. 421).
24 Security Guard II P2,355.00
11 Orbos vs. Civil Service Commission, 189 SCRA 459 (1990);
Villanueva vs. Balallo, 9 SCRA 407 (1963); Santos vs. Chito, 25
1 Clerk III P2,473.00
SCRA 343 (1968); Said Benzar Ali vs. Teehankee, 46 SCRA 728
(1972); Luego vs. Civil Service Commission, 143 SCRA 327
(1986); Central Bank vs. Civil Service Commission, 171 SCRA 2 Clerk II P2,250.00
741 (1989).
1 Driver P2,250.00
12 256 SCRA 396 (1996).
1 Utility Worker P2,000.00
13 Gloria vs. Judge de Guzman, G.R. No. 116183, October 6,
1995. ————
 64 Positions
While the Intelligence and Security Division of the DPOS created
to replace the defunct CSU (p. 1 of Ordinance NC-130) is
composed of the following positions:
Number of Position Title of Position Monthly Salary
1 Chief, Intelligence &
Security Officer P10,135.00
1 Asst. Chief Intelligence
& Security Officer P8,250.00
1 Security Officer III P5,670.00
1 Special Police Area
Supervisor P5,670.00
1 Security Officer II P4,418.00
1 Asst. Spl. Police Area Sv P4,418.00
4 Security Agent II P3,102.00
60 Security Agent I P2,752.00
1 Clerk III P2,473.00
10 Special Police Corporal P2,473.00
1 Clerk II P2,250.00
200 Special Policemen P2,250.00
————
282 Positions
22 Rule 3, Section 2, 1997 Rules on Civil Procedure.
23 199 SCRA 497 (1991).
24 G.R. No. 135805, April 29, 1999.
25 192 SCRA 84 (1990).
26 204 SCRA 965 (1991).
27 215 SCRA 389 (1992).
28 Judge Calderon vs. Solicitor General, 215 SCRA 876 (1992).
29 Chapter 3, Section 12 (11). The Revised Administrative Code
of 1987 on the Civil Service Commission.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 122197 June 26, 1998
ZOSIMO M. DIMAANDAL, petitioner,
vs.
COMMISSION ON AUDIT, respondent.
MARTINEZ, J.:
This petition for certiorari seeks the reversal of the decision of the
Commission on Audit dated September 7, 1995, 1 the dispositive portion of
which reads, to wit:
Foregoing premises considered, the instant appeal cannot be
given due course. Accordingly, the disallowance in question
in the total amount of P52,908.00 is hereby affirmed.
Considering that the claim for the RATA differential in the
amount of P8,400.00 is devoid of any legal basis, the same is
also disallowed. Hence, appellant Zosimo M. Dimaandal is
hereby directed to refund the salary and RATA differential in
 the amount of P61,308.00 he had received from the
Provincial Government of Batangas. 2
The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal, then holding the
position of Supply Officer III, was designated Acting Assistant Provincial
Treasurer for Administration by then Governor Vicente A. Mayo of Batangas.
Pursuant to the designation, petitioner filed a claim for the difference in salary
and Representation and Transportation Allowance (RATA) of Assistant
Provincial Treasurer and Supply Officer III for the whole year of 1993 in the
total amount of P61,308.00.
However, the Provincial Auditor disallowed in audit P52,908.00 of the claim.
What was allowed was only the amount of P8,400.00 which corresponds to
the difference in the allowances attached to the designation and the position
occupied by the appellant. The disallowances was premised on the following
reasons:
1. The provisions of Section 2077 of the Revised
Administrative Code is not applicable in the instant case as
the power to fill the position of Assistant Provincial Treasurer
rests on the Secretary of Finance.
2. The designation is temporary in nature and does not
amount to the issuance of an appointment as could entitle
the designee to receive the salary of the position to which he
is designated (Opinion of the Director, Office for Legal Affairs,
Civil Service Commission dated January 25, 1994).
On August 3, 1994, Governor Mayo wrote to the Provincial Auditor requesting
reconsideration of the subject disallowance, interposing the following
reasons:
1. That Section 2077 of the Revised Administrative Code is
applicable in the instant case as the same provides that the
Governor General or the officer having the power to fill-up a
temporary absence or disability in the provincial office has
the power to order or authorize payment of compensation to
any government officer or employee designated or appointed
temporarily to fill the place;
2. That the budget containing an appropriation for the
position of Assistant Provincial Treasurer for Administration
was already approved by the Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as
Acting Provincial Treasurer for Administration was no longer
performing the duties and functions of Supply Officer III.
The Provincial Auditor, however, denied the request for reconsideration.
Appellant was required to refund the amount of P52,908.00 which was
disallowed.
Petitioner appealed to the respondent Commission on Audit which sustained
the stand of the Provincial Auditor of Batangas as valid and proper. The
respondent Commission was of the view that the petitioner was merely
designated as an Assistant Provincial Treasurer for Administration in addition
to his regular duties. As such, he is not entitled to receive an additional
salary. The Commission further opined that petitioner was likewise not
entitled to receive the difference in RATA provided for under the Local Budget
Circular issued by the Department of Budget and Management considering
that the party designating him to such position is not the "duly competent
authority," provided for under Section 471 of the Local Government Code.
Notably, petitioner was appointed as Assistant Provincial Treasurer for
Administration by the Secretary of Finance only on July 8, 1994.
Thus, the respondent Commission not only affirmed the disallowance of the
amount of P52,908.00 but likewise disallowed the claim for the RATA
differential in the amount of P8,400.00, for being devoid of any legal basis.
Petitioner was, therefore, directed to refund the salary and RATA differential
in the amount of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is designated in an acting
capacity is entitled to the difference in salary between his regular position and
the higher position to which he is designated.
Petitioner avers that the respondent Commission's decision is "probably not
in accordance with applicable decisions of the Supreme Court." 3 He cites the
cases of Cui, et. al. vs. Ortiz, et. al., 4 April 29, 1960; and, Menzon vs. Petilla,
May 20, 1991, 5 which laid down the rule that de facto officers are entitled to
salary for services actually rendered. Petitioner contends that he may be
considered as a de facto officer by reason of services rendered in favor of the
Province of Batangas. He then posits the view that to disallow his
compensation and in the process allow the Province of Batangas to keep and
enjoy the benefits derived from his services actually rendered would be
tantamount to deprivation of property without due process of law, and
impairment of obligation of contracts duly enshrined in the Constitution.
On the other hand, the respondent Commission, through the Office of the
Solicitor General, maintains that decisions cited by petitioner do not find
application in petitioner's case. In the case of Menzon, what was extended
was an appointment to the vacant position of Vice-Governor. Here, what was
extended to petitioner was not appointment but a mere designation. Thus, the
nature of petitioner's designation and in the absence of authority of the
Governor to authorize the payment of the additional salary and RATA without
the appropriate resolution from the Sangguniang Panlalawigan does not
make the ruling on de facto officers applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioner's insistence that he could still claim the
salary and RATA differential because he actually performed the functions
pertaining to the office of Acting Assistant Provincial Treasurer and, therefore,
entitled to the salary and benefits attached to it despite the fact that the
Governor of Batangas had no authority to designate him to the said position.
The law applicable is Section 471(a) of RA 7160 otherwise known as the
Local Government Code which mandates that:
Sec. 471. Assistant Treasurers. — (a) An Assistant treasurer
may be appointed by the Secretary of Finance from a list of
at least three (3) ranking eligible recommendees of the
governor or mayor, subject to civil service law, rules and
regulations.
xxx xxx xxx
In fact, the appointing officer is authorized by law to order the payment of
compensation to any government officer or employee designated or
appointed to fill such vacant position, as provided under Section 2077 of the
Revised Administrative Code which states that:
Sec. 2077. Compensation for person appointed to temporary
service.
xxx xxx xxx
In case of the temporary absence or disability of a provincial
officer or in case of a vacancy in a provincial office, the
President of the Philippines or officer having the power to fill
such position may, in his discretion, order the payment of
compensation, or additional compensation, to any
Government officer or employee designated or appointed
temporarily to fill the place, but the total compensation paid
shall not exceed the salary authorized by law for the position
filled.
Undoubtedly, the aforecited laws do not authorize the Provincial Governor to
appoint nor even designate one temporarily in cases of temporary absence or
disability or a vacancy in a provincial office. That power resides in the
President of the Philippines or the Secretary of Finance.
Necessarily, petitioner's designation as Assistant Provincial Treasurer for
Administration by Governor Mayo Being defective, confers no right on the
part of petitioner to claim the difference in the salaries and allowances
attached to the position occupied by him.
Moreover, what was extended to petitioner by Governor Mayo was merely a
designation not an appointment. The respondent Commission clearly pointed
out the difference between an appointment and designation, thus:
There is a great difference between an appointment and
designation. While an appointment is the selection by the
proper authority of an individual who is to exercise the
powers and functions of a given office, designation merely
connotes an imposition of additional duties, usually by law,
upon a person already in the public service by virtue of an
earlier appointment (Santiago vs. COA, 199 SCRA 125).
Designation is mere imposition of new or additional duties on
the officer or employee to be performed by him in a special
manner. It does not entail payment of additional benefits or
grant upon the person so designated the right to claim the
salary attached to the position (COA Decision NO. 95-087
dated February 2, 1995). As such, there being no
appointment issued, designation does not entitle the officer
designated to receive the salary of the position. For the legal
basis of an employee's right to claim the attached thereto is a
duly issued and approved appointment to the position
(Opinion dated January 25, 1994 of the Office for Legal
Affairs, Civil Service Commission, Re: Evora, Carlos, A. Jr.,
Designation). 6
This Court has time and again ruled that:
Although technically not binding and controlling on the courts,
the construction given by the agency or entity charged with
the enforcement of a statute should be given great weight
 and respect (In re Allen, 2 Phil. 630, 640), particularly so if
such construction, as in the case at bar, has been uniform,
and consistent, and has been observed and acted on for a
long period of time (Molina vs. Rafferty, 38 Phil. 167;
Madrigal vs. Rafferty, 38 Phil. 414; Philippine Sugar Central
vs. Collector of Customs, 51 Phil.
143). 7
We see no justifiable reason to sustain petitioner's argument that non-
payment of his salary differential and RATA would be a violation of his
constitutional right against deprivation of property without due process of law
and the non-impairment of obligation of contracts clause in the Constitution.
The right to the salary of an Assistant Provincial Treasurer is based on the
assumption that the appointment or designation thereof was made in
accordance with law. Considering that petitioner's designation was without
color of authority, the right to the salary or an allowance due from said office
never existed. Stated differently, in the absence of such right, there can be no
violation of any constitutional right nor an impairment of the obligation of
contracts clause under the Constitution.
The nature of petitioner's designation and the absence of authority of the
Governor to authorize the payment of the additional salary and RATA without
the appropriate resolution from the Sangguniang Panlalawigan does not
make him a de facto officer.
A de facto officer is defined as one who derives his appointment from one
having colorable authority to appoint, if the office is an appointive office, and
whose appointment is valid on its face. It is likewise defined as one who is in
possession of an office, and is discharging its duties under color of authority,
by which is meant authority derived from an appointment, however irregular
or informal, so that the incumbent be not a mere volunteer. 8 Then a de facto
officer is one who is in possession of an office in the open exercise of its
functions under color of an election or an appointment, even though such
election or appointment may be irregular. 9
Petitioner invokes in his favor the ruling in Menzon vs. Petilla, 10 that a de
facto officer is entitled to receive the salary for services actually rendered.
However, his reliance on the Menzon case is misplaced. In Menzon, what
was extended was an appointment to the vacant position of Vice-Governor, in
petitioner's case, he was designated. The appointment of Menzon had the
color of validity. This Court said:
And finally, even granting that the President, acting through
the Secretary of Local Government, possesses no power to
appoint the petitioner, at the very least, the petitioner is a de
facto officer entitled to compensation. There is no denying
that the petitioner assumed the Office of the Vice-Governor
under a color of a known appointment. As revealed by the
records, the petitioner was appointed by no less than the
alter ego of the President, The Secretary of Local
Government, after which he took his oath of office before
Senator Alberto Romulo in the Office of Department of Local
Government Regional Director Res Salvatierra. Concededly,
the appointment has the color of validity.
Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al. 11 does not apply in
petitioner's case. In Cui, this Court held:
Petitioners' appointment on December 1 and 12, 1955 by the
then mayor of the municipality were legal and in order, the
appointing mayor still in possession of his right to appoint.
For such appointment to be complete, the approval of the
President of the Philippines is required. The law provides that
pending approval of said appointment by the President, the
appointee may assume office and receive salary for services
actually rendered. Accordingly, therefore, in that duration
until the appointment is finally acted upon favorably or
unfavorably, the appointees may be considered as "de facto"
officers and entitled to salaries for services actually rendered.
Finally, the appointment signed by Finance Undersecretary Juanita D.
Amatong is dated July 8, 1994. Petitioner's claim that the appointment retro-
acts to his assumption of office is not confirmed by the express phraseology
of the appointment itself, which states:
Kayo ay nahirang na ASSISTANT PROVINCIAL
TREASURER FOR ADMINISTRATION na may katayuang
PERMANENT sa OFFICE OF THE PROVINCIAL
TREASURER OF BATANGAS sa pasahod na ONE
HUNDRED TWENTY ONE THOUSAND SIX HUNDRED
TWENTY (P121,620.00) P.A. piso. Ito ay magkakabisa sa
petsa ng pagganap ng tungkulin subalit di aaga sa petsa ng
pagpirma ng puno ng tanggapan o appointing authority. 12
The subsequent appointment of petitioner to the position on July 8, 1994,
cannot justify petitioner's retention of the excess amount of P61,308.00,
which corresponds to the amount disallowed and ordered refunded by COA
representing the salary and RATA in excess of what was due him in 1993.
WHEREFORE, premises considered, the petition is hereby DISMISSED for
lack of merit.
SO ORDERED. G.R. No. 120193 March 6, 1996

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, LUIS MALALUAN, petitioner,
Kapunan, Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur. vs.
COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA,
Footnotes respondents.

1 COA Decision No. 95-467.  

2 Annex "A," Petition, rollo, pp. 16-19. HERMOSISIMA, JR., J.:p

3 P. 5, Petition. Novel is the situation created by the decision of the Commission on Elections
which declared the winner in an election contest and awarded damages,
consisting of attorney's fees, actual expenses for xerox copies, unearned
4 G.R. No. l-13753.
salary and other emoluments for the period, from March, 1994 to April, 1995,
en masse denominated as actual damages, notwithstanding the fact that the
5 197 SCRA 253. electoral controversy had become moot and academic on account of the
expiration of the term of office of the Municipal Mayor of Kidapawan, North
6 COA Decision, Annex "A," Petition, pp. 16-19, rollo. Cotabato.

7 Animos vs. Philippine Veterans Affairs Office, 174 SCRA Before us is a petition for certiorari and prohibition, with a prayer for the
214, 218. issuance of a temporary restraining order and writ of preliminary injunction,
seeking the review of the decision en banc 1 of the Commission of Elections
8 Philippine Law Dictionary, p. 162. (COMELEC) denying the motion for reconsideration of the decision 2 of its
First Division, 3 which reversed the decision 4 of the Regional Trial Court 5 in
9 People vs. Gabitanan, 43 OG 3211; 8 App. Ct. Rep. 623. the election case 6 involving the herein parties. While the Regional Trial Court
had found petitioner Luis Malaluan to be the winner of the elections for the
position of Municipal Mayor of Kidapawan, North Cotabato, the COMELEC,
10 197 SCRA 253.
on the contrary, found private respondent Joseph Evangelista to be the
rightful winner in said elections.
11 107 Phil. 1000.
Petitioner Luis Malaluan and private respondent Joseph Evangelista were
12 Annex "B," Petiton, rollo, p. 20. both mayoralty candidates in the Municipality of Kidapawan, North Cotabato,
in the Synchronized National and Local Elections held on May 11, 1992.
Private respondent Joseph Evangelista was proclaimed by the Municipal
The Lawphil Project - Arellano Law Foundation Board of Canvassers as the duly elected Mayor for having garnered 10,498
votes as against petitioner's 9,792 votes. Evangelista was, thus, said to have
a winning margin of 706 votes. But, on May 22, 1992, petitioner filed an
Republic of the Philippines election protest with the Regional Trial Court contesting 64 out of the total
SUPREME COURT 181 precincts of the said municipality. The trial court declared petitioner as
Manila the duly elected municipal mayor of Kidapawan, North Cotabato with a
plurality of 154 votes. Acting without precedent, the court found private
respondent liable not only for Malaluan's protest expenses but also for moral
EN BANC and exemplary damages and attorney's fees. On February 3, 1994, private
respondent appealed the trial court decision to the COMELEC.
 
Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for
execution pending appeal. The motion was granted by the trial court, in an
order, dated March 8, 1994, after petitioner posted a bond in the amount of
P500,000.00. By virtue of said order, petitioner assumed the office of
Municipal Mayor of Kidapawan, North Cotabato, and exercised the powers
and functions of said office. Such exercise was not for long, though. In the
herein assailed decision adverse to Malaluan's continued governance of the
Municipality of Kidapawan, North Cotabato, the First Division of the
Commission on Elections (COMELEC) ordered Malaluan to vacate the office,
said division having found and so declared private respondent to be the duly
elected Municipal Mayor of said municipality. The COMELEC en banc
affirmed said decision.
Malaluan filed this petition before us on May 31, 1995 as a consequence.
It is significant to note that the term of office of the local officials elected in the
May, 1992 elections expired on June 30, 1995. This petition, thus, has
become moot and academic insofar as it concerns petitioner's right to the
mayoralty seat in his municipality 7 because expiration of the term of office
contested in the election protest has the effect of rendering the same moot
and academic. 8
When the appeal from a decision in an election case has already become
moot, the case being an election protest involving the office of mayor the term
of which had expired, the appeal is dismissible on that ground, unless the
rendering of a decision on the merits would be of practical value. 9 This rule
we established in the case of Yorac vs. Magalona 10 which we dismissed
because it had been mooted by the expiration of the term of office of the
Municipal Mayor of Saravia, Negros Occidental. This was the object of
contention between the parties therein. The recent case of Atienza vs.
Commission on Elections, 11 however, squarely presented the situation that is
the exception to that rule.
Comparing the scenarios in those two cases, we explained:
Second, petitioner's citation of Yorac vs. Magalona as
authority for his main proposition is grossly inappropriate and
misses the point in issue. The sole question in that case
centered on an election protest involving the mayoralty post
in Saravia, Negros Occidental in the general elections of
1955, which was rendered moot and academic by the
expiration of the term of office in December, 1959. It did not
involve a monetary award for damages and other expenses
incurred as a result of the election protest. In response to the
petitioner's contention that the issues presented before the
court were novel and important and that the appeal should
not be dismissed, the Court held — citing the same provision
of the Rules of Court upon which petitioner staunchly places
reliance — that a decision on the merits in the case would
have no practical value at all, and forthwith dismissed the
case for being moot. That is not the case here. In
contradistinction to Yorac, a decision on the merits in the
case at bench would clearly have the practical value of either
sustaining the monetary award for damages or relieving the
private respondent from having to pay the amount thus
awarded. 12
Indeed, this petition appears now to be moot and academic because the
herein parties are contesting an elective post to which their right to the office
no longer exists. However, the question as to damages remains ripe for
adjudication. The COMELEC found petitioner liable for attorney's fees, actual
expenses for xerox copies, and unearned salary and other emoluments from
March, 1994 to April, 1995, en masse denominated as actual damages,
default in payment by petitioner of which shall result in the collection of said
amount from the bond posted by petitioner on the occasion of the grant of his
motion for execution pending appeal in the trial court. Petitioner naturally
contests the propriety and legality of this award upon private respondent on
the ground that said damages have not been alleged and proved during trial.
What looms large as the issue in this case is whether or not the COMELEC
gravely abused its discretion in awarding the aforecited damages in favor of
private respondent.
The Omnibus Election Code provides that "actual or compensatory damages
may be granted in all election contests or in quo warranto proceedings in
accordance with law." 13 COMELEC Rules of Procedure provide that "in all
election contests the Court may adjudicate damages and attorney's fees as it
may deem just and as established by the evidence if the aggrieved party has
included such claims in his pleadings." 14 This appears to require only that the
judicial award of damages be just and that the same be borne out by the
pleadings and evidence The overriding requirement for a valid and proper
award of damages, it must be remembered, is that the same is in accordance
with law, specifically, the provisions of the Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that "except as provided by law or by
stipulation, one is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such compensation is
referred to as actual or compensatory damages." The Civil Code further
prescribes the proper setting for allowance of actual or compensatory
damages in the following provisions:
 Art. 2201. In contracts and quasi-contracts, the damages for
which the obligor who acted in good faith is liable shall be
those that are the natural and probable consequences of the
breach of the obligation, and which the parties have foreseen
or could have reasonably foreseen at the time the obligation
was constituted.
In case of fraud, bad faith, malice or wanton attitude, the
obliger shall be responsible for all damages which may be
reasonably attributed to the non-performance of the
obligation.
Art. 2202. In crimes and quasi-delicts, the defendant shall be
liable for all damages which are the natural and probable
consequences of the act or omission complained of. It is not
necessary that such damages have been foreseen or could
have reasonably been foreseen by the defendant.
Considering that actual or compensatory damages are appropriate only in
breaches of obligations in cases of contracts and quasi-contracts and on the
occasion of crimes and quasi-delicts where the defendant may be held liable
for all damages the proximate cause of which is the act or omission
complained of, the monetary claim of a party in an election case must
necessarily be hinged on either a contract or a quasi-contract or a tortious act
or omission or a crime, in order to effectively recover actual or compensatory
damages. 15 In the absence of any or all of these, "the claimant must be able
to point out a specific provision of law authorizing a money claim for election
protest expenses against the losing party" 16. For instance, the claimant may
cite any of the following provisions of the Civil Code under the chapter on
human relations, which provisions create obligations not by contract, crime or
negligence, but directly by law:
Art. 19. Every person must in the exercise of his rights and in
the performance of his duties, act with justice, give everyone
his due, and observe honesty and good faith.
Art. 20. Every person who, contrary to law, wilfully or
negligently causes damage to another, shall indemnify the
latter for the same.
xxx xxx xxx
Art. 32. Any public officer or employee, or any private
individual, who directly or indirectly obstructs, defeats,
violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable
to the latter for damages:
xxx xxx xxx
(5) Freedom of suffrage;
In any of the cases referred to in this article, whether or not
the defendant's act or omission constitutes a criminal
offense, the aggrieved party has a right to commence an
entirely separate and distinct civil action for damages, and for
other relief. . . . 17
Claimed as part of the damages to which private respondent is allegedly
entitled to, is P169,456.00 constituting salary and other emoluments from
March, 1994 to April, 1995 that would have accrued to him had there not
been an execution of the trial court's decision pending appeal therefrom in the
COMELEC.
The long-standing rule in this jurisdiction is that notwithstanding his
subsequent ouster as a result of an election protest, an elective official who
has been proclaimed by the COMELEC as winner in an electoral contest and
who assumed office and entered into the performance of the duties of that
office, is entitled to the compensation, emoluments and allowances legally
provided for the position. 18 We ratiocinated in the case of Rodriguez vs. Tan
that:
This is as it should be. This is in keeping with the ordinary
course of events. This is simple justice. The emolument must
go to the person who rendered the service unless the
contrary is provided. There is no averment in the complaint
that he is linked with any irregularity vitiating his election.
This is the policy and the rule that has been followed
consistently in this jurisdiction in connection with positions
held by persons who had been elected thereto but were later
ousted as a result of an election protest. The right of the
persons elected to compensation during their incumbency
has always been recognized. We cannot recall of any
precedent wherein the contrary rule has been upheld. 19
In his concurring opinion in the same case, however, Justice Padilla
equally stressed that, while the general rule is that the ousted elective
official is not obliged to reimburse the emoluments of office that he
had received before his ouster, he would be liable for damages in
case he would be found responsible for any unlawful or tortious acts
in relation to his proclamation. We quote the pertinent portion of that
opinion for emphasis:
Nevertheless, if the defendant, directly or indirectly, had
committed unlawful or tortious acts which led to and resulted
in his proclamation as senator-elect, when in truth and in fact
he was not so elected, he would be answerable for damages.
In that event the salary, fees and emoluments received by or
paid to him during his illegal incumbency would be a proper
item of recoverable damage. 20
The criterion for a justifiable award of election protest expenses and
salaries and emoluments, thus, remains to be the existence of a
pertinent breach of obligations arising from contracts or quasi-
contracts, tortious acts, crimes or a specific legal provision
authorizing the money claim in the context of election cases. Absent
any of these, we could not even begin to contemplate liability for
damages in election cases, except insofar as attorney's fees are
concerned, since the Civil Code enumerates the specific instances
when the same may be awarded by the court.
Art. 2208. In the absence of stipulation, attorney's fees and
expenses of litigation, other than judicial costs, cannot be
recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has compelled the
plaintiff to litigate with third persons or to incur expenses to
protect his interest;
(3) In criminal cases of malicious prosecution against the
plaintiff;
(4) In case of a clearly unfounded civil action or proceeding
against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith
in refusing to satisfy the plaintiffs plainly valid, just and
demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers,
laborers and skilled workers;
(8) In actions for indemnity under workmen's compensation
and employer's liability laws;
(9) In a separate civil action to recover civil liability arising
from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and
equitable that attorney's fees and expenses of litigation
should be recovered. 21
Given the aforecited laws, and jurisprudence on the matter at issue, let us
now look into the basis of respondent COMELEC for awarding actual
damages to private respondent in the form of reimbursement for attorney's
fees, actual expenses for xerox copies, and salary and other emoluments that
should have accrued to him from March, 1994 to April, 1995 had the RTC not
issued an order for execution pending appeal.
The First Division of the COMELEC ruled on private respondent's claim for
actual or compensatory damages in this wise:
. . . under the present legal setting, it is more difficult than in
the past to secure an award of actual or compensatory
damages either against the protestant or the protestee
because of the requirerments of the law.
In the instant case, however, We are disposed to conclude
that the election protest filed by the protestant is clearly
unfounded. As borne out by the results of the appreciation of
ballots conducted by this Commission, apparently the protest
was filed in bad faith without sufficient cause or has been
filed for the sole purpose of molesting the protestee-appellant
for which he incurred expenses. The erroneous ruling of the
Court which invalidated ballots which were clearly valid
added more injury to the protestee-appellant. This would
have been bearable since he was able to perfect his appeal
to this Commission. The final blow, however, came when the
Court ordered the execution of judgment pending appeal
which, from all indications, did not comply with the
requirements of Section 2, Rule 39 of the Rules of Court.
There was no good and special reason at all to justify the
 execution of judgment pending appeal because the
protestee's winning margin was 149 votes while that of the
protestant — after the Court declared him a winner — was
only a margin of 154 votes. Clearly, the order of execution of
judgment pending appeal was issued with grave abuse of
discretion.
For these reasons, protestee-appellant seeks to recover the following:
1. Actual damages representing attorney's fees for the new
counsel who handled the Appeal and the Petition for
Certiorari before the Court of Appeals . . . P372,500.00
2. Actual expenses for xerox copying of Appellants Brief and
the annexes (14 copies at P1.50 . . . P11,235.00
3. Actual expenses for xerox copying of ballots . . . P3,919.20
4. Actual damages for loss of salary and other emoluments
since March 1994 as per attached Certification issued by the
Municipal Account of Kidapawan . . . P96,832.00 (up to
October 1994 only)
Under Article 2208 of the New Civil Code attorney's fees and
expenses of litigation can be recovered (as actual damages)
in the case of clearly unfounded civil action or proceeding.
And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan
(91 Phil. 724) disallowed recovery of salaries and allowances
(as damages) from elected officials who were later ousted,
under the theory that persons elected has (sic) a right to
compensation during their incumbency, the instant case is
different. The protestee-appellant was the one elected. He
was ousted not by final judgment bur by an order of
execution pending appeal which was groundless and issued
with grave abuse of discretion. Protestant-appellee occupied
the position in an illegal manner as a usurper and, not having
been elected to the office, but merely installed through a
baseless court order, he certainly had no right to the salaries
and emoluments of the office.
Actual damages in the form of reimbursement for attorney's
fees (P372,500.00), actual expenses for xerox copies
(P15,154.00), unearned salary and other emoluments from
March 1994 to April 1995 or 14 months at P12,104.00 a
month (P169,456.00), totalled P557,110.00. To (sic) this
amount, however, P300,000.00 representing that portion of
attorney's fees denominated as success fee' must be
deducted this being premised on a contingent event the
happening of which was uncertain from the beginning. Moral
damages and exemplary damages claimed are, of course,
disallowed not falling within the purview of Section 259 of the
Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to
pay the actual damages of P257,110.00, the amount will be
assessed, levied and collected from the bond of P500,000.00
which he put up before the Court as
a condition for the issuance of the order of execution of
judgment pending appeal. 22
Petitioner filed a motion for reconsideration of the aforecited decision on
March 29, 1995. The COMELEC en banc, however, did not find any new
matter substantial in nature, persuasive in character or sufficiently
provocative to compel reconsideration of said decision and accordingly
affirmed in toto the said decision. Hence, this petition raises, among others,
the issue now solely remaining and in need of final adjudication in view of the
mootness of the other issues anent petitioner's right to the contested office
the term for which has already expired.
We have painstakingly gone over the records of this case and we can
attribute to petitioner no breach of contract or quasi-contract; or tortious act
nor crime that may make him liable for actual damages. Neither has private
respondent been "able to point out to a specific provision of law authorizing a
money claim for election protest expenses against the losing party." 23
We find respondent COMELEC's reasoning in awarding the damages in
question to be fatally flawed. The COMELEC found the election protest filed
by the petitioner to be clearly unfounded because its own appreciation of the
contested ballots yielded results contrary to those of the trial court. Assuming,
ex gratia argumentis, that this is a reasonable observation not without basis, it
is nonetheless fallacious to conclude a malicious intention on the part of
petitioner to molest private respondent on the basis of what respondent
COMELEC perceived as an erroneous ruling of the trial court. In other words,
the actuations of the trial court, after the filing of a case before it, are its own,
and any alleged error on its part does not, in the absence of clear proof, make
the suit "clearly unfounded" for which the complainant ought to be penalized.
Insofar as the award of protest expenses and attorney's fees are concerned,
therefore we find them to have been awarded by respondent COMELEC
without basis, the election protest not having been a clearly unfounded one
under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of judgment
pending appeal to be defective because of alleged non-compliance with the
requirement that there be a good and special reason 24 to justify execution
pending appeal. We, however, find that the trial court acted judiciously in the
exercise of its prerogatives under the law in issuing the order granting
execution pending appeal. First, it should be noted that the applicability of the
provisions of the Rules of Court, relating to execution pending appeal, has
ceased to be debatable after we definitively ruled in Garcia vs. de Jesus 25
that "Section 2, Rule 39 of the Rules of Court, which allows Regional Trial
Courts to order executions pending appeal upon good reasons stated in a
special order, may be made to apply by analogy or suppletorily to election
contests decided by them." 26 It is not disputed that petitioner filed a bond in
the amount of P500,000.00 as required under the Rules of Court.
It is also now a settled rule that "as much recognition should be given to the
value of the decision of a judicial body as a basis for the right to assume
office as that given by law to the proclamation made by the Board of
Canvassers." 27
. . . Why should the proclamation by the board of canvassers
suffice as basis of the right to assume office, subject to future
contingencies attendant to a protest, and not the decision of
a court of justice? Indeed . . . the board of canvassers is
composed of persons who are less technically prepared to
make an accurate appreciation of the ballots, apart from their
being more apt to yield extraneous considerations . . . the
board must act summarily, practically raising (sic) against
time, while, on the other hand, the judge has the benefit of all
the evidence the parties can offer and of admittedly better
technical preparation and background, apart from his being
allowed ample time for conscientious study and mature
deliberation before rendering judgment . . . . 28
Without evaluating the merits of the trial court's actual appreciation of
the ballots contested in the election protest, we note on the face of its
decision that the trial court relied on the findings of the National
Bureau of Investigation (NBI) handwriting experts which findings
private respondent did not even bother to rebut. We thus see no
reason to disregard the presumption of regularity in the performance
of official duty on the part of the trial court judge. Capping this
combination of circumstances which impel the grant of immediate
execution is the undeniable urgency involved in the political situation
in the Municipality of Kidapawan, North Cotabato. The appeal before
the COMELEC would undoubtedly cause the political vacuum in said
municipality to persist, and so the trial court reasonably perceived
execution pending appeal to be warranted and justified. Anyway, the
bond posted by petitioner could cover any damages suffered by any
aggrieved party. It is true that mere posting of a bond is not enough
reason to justify execution pending appeal, but the nexus of
circumstances aforechronicled considered together and in relation to
one another, is the dominant consideration for the execution pending
appeal. 29
Finally, we deem the award of salaries and other emoluments to be improper
and lacking legal sanction. Respondent COMELEC ruled that inapplicable in
the instant case is the ruling in Rodriguez vs. Tan 30 because while in that
case the official ousted was the one proclaimed by the COMELEC, in the
instant case, petitioner was proclaimed winner only by the trial court and
assumed office by virtue of an order granting execution pending appeal.
Again, respondent COMELEC sweepingly concluded, in justifying the award
of damages, that since petitioner was adjudged the winner in the elections
only by the trial court and assumed the functions of the office on the strength
merely of an order granting execution pending appeal, the petitioner occupied
the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a usurper is one
who undertakes to act officially without any color of right, 31 the petitioner
exercised the duties of an elective office under color of election thereto. 32 It
matters not that it was the trial court and not the COMELEC that declared
petitioner as the winner, because both, at different stages of the electoral
process, have the power to so proclaim winners in electoral contests. At the
risk of sounding repetitive, if only to emphasize this point, we must reiterate
that the decision of a judicial body is no less a basis than the proclamation
made by the COMELEC-convened Board of Canvassers for a winning
candidate's right to assume office, for both are undisputedly legally
sanctioned. We deem petitioner, therefore, to be a "de facto officer who, in
good faith, has had possession of the office and had discharged the duties
pertaining thereto" 33 and is thus "legally entitled to the emoluments of the
office." 34
To recapitulate, Section 259 of the Omnibus Election Code only provides for
the granting in election cases of actual and compensatory damages in
accordance with law. The victorious party in an election case cannot be
indemnified for expenses which he has incurred in an electoral contest in the
absence of a wrongful act or omission or breach of obligation clearly
attributable to the losing party. Evidently, if any damage had been suffered by
private respondent due to the execution of judgment pending appeal, that
damage may be said to be equivalent to damnum absque injuria, which is,
damage without injury, or damage or injury inflicted without injustice, or loss
or damage without violation of a legal right, or a wrong done to a man for
which the law provides no remedy. 35
WHEREFORE, the petition for certiorari is GRANTED. While we uphold the 13 B.P. Blg. 881, Sec. 259.
COMELEC decision dated May 5, 1995 that private respondent Joseph
Evangelista is the winner in the election for mayor of the Municipality of 14 COMELEC Rules of Procedure, Rule 35, Sec. 19.
Kidapawan, North Cotabato, that portion of the decision is deemed moot and
academic because the term of office for mayor has long expired. That portion 15 Atienza v. Commission on Elections, 239 SCRA 298.
of the decision awarding actual damages to private respondent Joseph
Evangelista is hereby declared null and void for having been issued in grave
abuse of discretion and in excess of jurisdiction. 16 Ibid.

SO ORDERED. 17 Civil Code of the Philippines, Preliminary Title, Chapter 2.

Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ., concur.
Footnotes
1 Promulgated on May 5, 1995 in EAC No. 8-94; Rollo, pp. 36-40.
2 Promulgated on March 24, 1995 in EAC No. 8-94; Rollo, pp. 41-89.
3 Formerly Second Division with members, Commissioners Regalado
E. Maambong, Graduacion A.R. Claravall, and Julio F. Desamito.
18 Rodriguez v. Tan, 91 Phil. 724.
19 Ibid.
20 Concurring Opinion of Justice Padilla in Rodriguez v. Tan, supra.
21 Civil Code of the Philippines, Book IV, Title XVIII, Chapter 2.
22 Decision rendered by the First Division of the Commission on
Elections (COMELEC), promulgated on March 24, 1995, pp. 45-48;
Rollo, pp. 85-88.

4 Dated January 31, 1994; Rollo, pp. 90-135. 23 Atienza v. COMELEC, 239 SCRA 298.

5 Regional Trial Court of Kidapawan, Cotabato, 12th Judicial Region, 24 Rules of Court, Rule 39, Section 2.
presided by Judge Rodolfo M. Serrano.
25 206 SCRA 779.
6 Election Case No. 881.
26 Ibid.
7 Amatong v. COMELEC, G.R. No. 71003, April 28, 1988, En Banc,
Minute Resolution; Artano v. Arcillas, G.R. No. 76823, April 26, 1988, 27 Garcia v. De Jesus, 206 SCRA 779.
En Banc, Minute Resolution.
28 Gahol v. Riodique, 64 SCRA 494.
8 Atienza v. Commission on Elections, 239 SCRA 298; Abeja v.
Tañada, 236 SCRA 60; Yorac v. Magalona, 3 SCRA 76. 29 Roxas v. Court of Appeals, 157 SCRA 370.

9 Yorac v. Magalona, supra. 30 91 Phil. 724.

10 3 SCRA 76. 31 Tayco v. Capistrano, 53 Phil. 866.

11 239 SCRA 298. 32 Ibid.

12 Atienza v. Commission on Elections, supra. 33 Civil Liberties Union v. The Executive Secretary, 194 SCRA 317.
 34 Ibid.
35 Escano v. CA, 100 SCRA 197; Atienza v. COMELEC, 239 SCRA
298.
The Lawphil Project - Arellano Law Foundation
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO,
DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P. REYES,
petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J.
GORDON, respondents.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio
E. Acierto for petitioners.
 
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as
the "Bases Conversion and Development Act of 1992," under which
respondent Mayor Richard J. Gordon of Olongapo City was appointed
Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority
(SBMA), is challenged in this original petition with prayer for prohibition,
preliminary injunction and temporary restraining order "to prevent useless and
unnecessary expenditures of public funds by way of salaries and other
operational expenses attached to the office . . . ." 2 Paragraph (d) reads —
(d) Chairman administrator — The President shall appoint a
professional manager as administrator of the Subic Authority
with a compensation to be determined by the Board subject
to the approval of the Secretary of Budget, who shall be the
ex oficio chairman of the Board and who shall serve as the
chief executive officer of the Subic Authority: Provided,
however, That for the first year of its operations from the
effectivity of this Act, the mayor of the City of Olongapo shall
be appointed as the chairman and chief executive officer of
the Subic Authority (emphasis supplied).
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the
Subic, Zambales, and officers and members of the Filipino Civilian
Employees Association in U.S. Facilities in the Philippines, maintain that the
proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on the
following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-
B, of the Constitution, which states that "[n]o elective official shall be eligible
for appointment or designation in any capacity to any public officer or position
during his tenure," 3 because the City Mayor of Olongapo City is an elective
official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the
Constitution, which provides that "[t]he President shall . . . . appoint all other
officers of the Government whose appointments are not otherwise provided
for by law, and those whom he may be authorized by law to appoint", 4 since it
was Congress through the questioned proviso and not the President who
appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the
Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. — The following shall be guilty of
an election offense: . . . (g) Appointment of new employees,
creation of new position, promotion, or giving salary
increases. — During the period of forty-five days before a
regular election and thirty days before a special election, (1)
any head, official or appointing officer of a government office,
agency or instrumentality, whether national or local, including
government-owned or controlled corporations, who appoints
or hires any new employee, whether provisional, temporary
or casual, or creates and fills any new position, except upon
prior authority of the Commission. The Commission shall not
grant the authority sought unless it is satisfied that the
position to be filled is essential to the proper functioning of
the office or agency concerned, and that the position shall
not be filled in a manner that may influence the election. As
an exception to the foregoing provisions, a new employee
may be appointed in case of urgent need: Provided,
however, That notice of the appointment shall be given to the
Commission within three days from the date of the
appointment. Any appointment or hiring in violation of this
provision shall be null and void. (2) Any government official
 who promotes, or gives any increase of salary or
remuneration or privilege to any government official or
employee, including those in government-owned or
controlled corporations . . . .
for the reason that the appointment of respondent Gordon to the subject
posts made by respondent Executive Secretary on 3 April 1992 was within
the prohibited 45-day period prior to the 11 May 1992 Elections.
The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227
which states, "Provided, however, That for the first year of its operations from
the effectivity of this Act, the mayor of the City of Olongapo shall be
appointed as the chairman and chief executive officer of the Subic Authority,"
violates the constitutional proscription against appointment or designation of
elective officials to other government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure.
Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The section expresses the policy against the concentration of several public
positions in one person, so that a public officer or employee may serve full-
time with dedication and thus be efficient in the delivery of public services. It
is an affirmation that a public office is a full-time job. Hence, a public officer or
employee, like the head of an executive department described in Civil
Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft
League of the Philippines, Inc. v. Philip Ella C. Juico, as Secretary of
Agrarian Reform, G.R. No. 83815, 6 ". . . . should be allowed to attend to his
duties and responsibilities without the distraction of other governmental duties
or employment. He should be precluded from dissipating his efforts, attention
and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is
to prevent a situation where a local elective official will work for his
appointment in an executive position in government, and thus neglect his
constituents . . . ." 7
In the case before us, the subject proviso directs the President to appoint an
elective official, i.e., the Mayor of Olongapo City, to other government posts
(as Chairman of the Board and Chief Executive Officer of SBMA). Since this
is precisely what the constitutional proscription seeks to prevent, it needs no
stretching of the imagination to conclude that the proviso contravenes Sec. 7,
first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an
elective official may be most beneficial to the higher interest of the body
politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC) permits the
appointment of a local elective official to another post if so allowed by law or
by the primary functions of his office. 8 But, the contention is fallacious.
Section 94 of the LGC is not determinative of the constitutionality of Sec. 13,
par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental
law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not
the issue here nor is that section sought to be declared unconstitutional, we
need not rule on its validity. Neither can we invoke a practice otherwise
unconstitutional as authority for its validity.
In any case, the view that an elective official may be appointed to another
post if allowed by law or by the primary functions of his office, ignores the
clear-cut difference in the wording of the two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of
multiple offices by an appointive official when allowed by law or by the
primary functions of his position, the first paragraph appears to be more
stringent by not providing any exception to the rule against appointment or
designation of an elective official to the government post, except as are
particularly recognized in the Constitution itself, e.g., the President as head of
the economic and planning agency; 9 the Vice-President, who may be
appointed Member of the Cabinet; 10 and, a member of Congress who may be
designated ex officio member of the Judicial and Bar Council. 11
The distinction between the first and second paragraphs of Sec. 7, Art. IX-B,
was not accidental when drawn, and not without reason. It was purposely
sought by the drafters of the Constitution as shown in their deliberation, thus
—
MR. MONSOD. In other words, what then Commissioner is
saying, Mr. Presiding Officer, is that the prohibition is more
strict with respect to elective officials, because in the case of
appointive officials, there may be a law that will allow them to
hold other positions.
 MR. FOZ. Yes, I suggest we make that difference, because
in the case of appointive officials, there will be certain
situations where the law should allow them to hold some
other positions. 12
The distinction being clear, the exemption allowed to appointive officials in the
second paragraph cannot be extended to elective officials who are governed
by the first paragraph.
It is further argued that the SBMA posts are merely ex officio to the position of
Mayor of Olongapo City, hence, an excepted circumstance, citing Civil
Liberties Union v. Executive Secretary, 13 where we stated that the prohibition
against the holding of any other office or employment by the President, Vice-
President, Members of the Cabinet, and their deputies or assistants during
their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not
comprehend additional duties and functions required by the primary functions
of the officials concerned, who are to perform them in an ex officio capacity
as provided by law, without receiving any additional compensation therefor.
This argument is apparently based on a wrong premise. Congress did not
contemplate making the subject SBMA posts as ex officio or automatically
attached to the Office of the Mayor of Olongapo City without need of
appointment. The phrase "shall be appointed" unquestionably shows the
intent to make the SBMA posts appointive and not merely adjunct to the post
of Mayor of Olongapo City. Had it been the legislative intent to make the
subject positions ex officio, Congress would have, at least, avoided the word
"appointed" and, instead, "ex officio" would have been used. 14
Even in the Senate deliberations, the Senators were fully aware that subject
proviso may contravene Sec. 7, first par., Art. IX-B, but they nevertheless
passed the bill and decided to have the controversy resolved by the courts.
Indeed, the Senators would not have been concerned with the effects of Sec.
7, first par., had they considered the SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the subject proviso
was stated, Senator Rene Saguisag remarked that "if the Conference
Committee just said "the Mayor shall be the Chairman" then that should
foreclose the issue. It is a legislative choice." 15 The Senator took a view that
the constitutional proscription against appointment of elective officials may
have been sidestepped if Congress attached the SBMA posts to the Mayor of
Olongapo City instead of directing the President to appoint him to the post.
Without passing upon this view of Senator Saguisag, it suffices to state that
Congress intended the posts to be appointive, thus nibbling in the bud the
argument that they are ex officio.
The analogy with the position of Chairman of the Metro Manila Authority
made by respondents cannot be applied to uphold the constitutionality of the
challenged proviso since it is not put in issue in the present case. In the same
vein, the argument that if no elective official may be appointed or designated
to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to
receive double compensation 16 would be useless, is non sequitur since Sec.
8 does not affect the constitutionality of the subject proviso. In any case, the
Vice-President for example, an elective official who may be appointed to a
cabinet post under Sec. 3, Art. VII, may receive the compensation attached to
the cabinet position if specifically authorized by law.
Petitioners also assail the legislative encroachment on the appointing
authority of the President. Section 13, par. (d), itself vests in the President the
power to appoint the Chairman of the Board and the Chief Executive Officer
of SBMA, although he really has no choice under the law but to appoint the
Mayor of Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a person, by the
person or persons having authority therefor, to discharge the duties of some
office or trust," 17 or "[t]he selection or designation of a person, by the person
or persons having authority therefor, to fill an office or public function and
discharge the duties of the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the
selection, by the authority vested with the power, of an individual who is to
exercise the functions of a given office."
Considering that appointment calls for a selection, the appointing power
necessarily exercises a discretion. According to Woodbury, J., 20 "the choice
of a person to fill an office constitutes the essence of his appointment," 21 and
Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an
executive act involving the exercise of discretion." 22 In Pamantasan ng
Lungsod ng Maynila v. Intermediate Appellate Court 23 we held:
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the
necessary qualifications and eligibilities. It is a prerogative of
the appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint. Appointment
involves an exercise of discretion of whom to appoint; it is not a ministerial act
of issuing appointment papers to the appointee. In other words, the choice of
the appointee is a fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to appoint an
officer, it (Congress) cannot at the same time limit the choice of the President
to only one candidate. Once the power of appointment is conferred on the
President, such conferment necessarily carries the discretion of whom to
appoint. Even on the pretext of prescribing the qualifications of the officer,
Congress may not abuse such power as to divest the appointing authority,
directly or indirectly, of his discretion to pick his own choice. Consequently,
when the qualifications prescribed by Congress can only be met by one
individual, such enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular restriction on the
power of appointment. 24
In the case at bar, while Congress willed that the subject posts be filled with a
presidential appointee for the first year of its operations from the effectivity of
R.A. 7227, the proviso nevertheless limits the appointing authority to only one
eligible, i.e., the incumbent Mayor of Olongapo City. Since only one can
qualify for the posts in question, the President is precluded from exercising
his discretion to choose whom to appoint. Such supposed power of
appointment, sans the essential element of choice, is no power at all and
goes against the very nature itself of appointment.
While it may be viewed that the proviso merely sets the qualifications of the
officer during the first year of operations of SBMA, i.e., he must be the Mayor
of Olongapo City, it is manifestly an abuse of congressional authority to
prescribe qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on the President is
a perfectly valid legislative act, the proviso limiting his choice to one is
certainly an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment remains all
throughout his tenure or during his incumbency, he may however resign first
from his elective post to cast off the constitutionally-attached disqualification
before he may be considered fit for appointment. The deliberation in the
Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the
substitution of the word "term" with TENURE.
MR. FOZ. The effect of the proposed amendment is to make
possible for one to resign from his position.
MR. DAVIDE. Yes, we should allow that prerogative.
MR. FOZ. Resign from his position to accept an executive
position.
MR. DAVIDE. Besides, it may turn out in a given case that
because of, say, incapacity, he may leave the service, but if
he is prohibited from being appointed within the term for
which he was elected, we may be depriving the government
of the needed expertise of an individual. 25
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 other government posts, he
does not automatically forfeit his elective office nor remove his ineligibility
imposed by the Constitution. On the contrary, since an incumbent elective
official is not eligible to the appointive position, his appointment or designation
thereto cannot be valid in view of his disqualification or lack of eligibility. This
provision should not be confused with Sec. 13, Art. VI, of the Constitution
where "(n)o Senator or Member of the House of Representatives may hold
any other office or employment in the Government . . . during his term without
forfeiting his seat . . . ." The difference between the two provisions is
significant in the sense that incumbent national legislators lose their elective
posts only after they have been appointed to another government office, while
other incumbent elective officials must first resign their posts before they can
be appointed, thus running the risk of losing the elective post as well as not
being appointed to the other post. It is therefore clear that ineligibility is not
directly related with forfeiture of office. ". . . . The effect is quite different
where it is expressly provided by law that a person holding one office shall be
ineligible to another. Such a provision is held to incapacitate the incumbent of
an office from accepting or holding a second office (State ex rel. Van Antwerp
v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61
SE 721) and to render his election or appointment to the latter office void
(State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR
945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26
"Where the constitution, or statutes declare that persons holding one office
shall be ineligible for election or appointment to another office, either
generally or of a certain kind, the prohibition has been held to incapacitate the
incumbent of the first office to hold the second so that any attempt to hold the
second is void (Ala. — State ex rel. Van Antwerp v. Hogan, 218 So 2d 258,
283 Ala 445)." 27
As incumbent elective official, respondent Gordon is ineligible for appointment
to the position of Chairman of the Board and Chief Executive of SBMA;
hence, his appointment thereto pursuant to a legislative act that contravenes
the Constitution cannot be sustained. He however remains Mayor of
Olongapo City, and his acts as SBMA official are not necessarily null and
void; he may be considered a de facto officer, "one whose acts, though not
those of a lawful officer, the law, upon principles of policy and justice, will hold
valid so far as they involve the interest of the public and third persons, where
the duties of the office were exercised . . . . under color of a known election or
appointment, void because the officer was not eligible, or because there was
a want of power in the electing or appointing body, or by reason of some
defect or irregularity in its exercise, such ineligibility, want of power or defect
being unknown to the public . . . . [or] under color of an election, or
appointment, by or pursuant to a public unconstitutional law, before the same
is adjudged to be such (State vs. Carroll, 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 been received by
respondent Gordon pursuant to his appointment may be retained by him.
The illegality of his appointment to the SBMA posts being now evident, other
matters affecting the legality of the questioned proviso as well as the
appointment of said respondent made pursuant thereto need no longer be
discussed.
In thus concluding as we do, we can only share the lament of Sen. Sotero
Laurel which he expressed in the floor deliberations of S.B. 1648, precursor
of R.A. 7227, when he articulated —
. . . . (much) as we would like to have the present Mayor of
Olongapo City as the Chief Executive of this Authority that we
are creating; (much) as I, myself, would like to because I
know the capacity, integrity, industry and dedication of Mayor
Gordon; (much) as we would like to give him this terrific,
burdensome and heavy responsibility, we cannot do it
because of the constitutional prohibition which is very clear. It
says: "No elective official shall be appointed or designated to
another position in any capacity." 29
For, indeed, "a Constitution must be firm and immovable, like a mountain
amidst the strife of storms or a rock in the ocean amidst the raging of the
waves." 30 One of the characteristics of the Constitution is permanence, i.e.,
"its capacity to resist capricious or whimsical change dictated not by
legitimate needs but only by passing fancies, temporary passions or
occasional infatuations of the people with ideas or personalities . . . . Such a
Constitution is not likely to be easily tampered with to suit political
expediency, personal ambitions or ill-advised agitation for change." 31
Ergo, under the Constitution, Mayor Gordon has a choice. We have no
choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". .
. Provided, however, That for the first year of its operations from the
effectivity of this Act, the Mayor of the City of Olongapo shall be appointed as
the chairman and chief executive officer of the Subic Authority," is declared
unconstitutional; consequently, the appointment pursuant thereto of the
Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence
NULL and VOID.
However, all per diems, allowances and other emoluments received by
respondent Gordon, if any, as such Chairman and Chief Executive Officer
may be retained by him, and all acts otherwise legitimate done by him in the
exercise of his authority as officer de facto of SBMA are hereby UPHELD.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr.,
Romero, Nocon, Melo and Quiason, JJ., concur.
Padilla, J., is on leave.
 
# Footnotes
1 An Act Accelerating the Conversion of Military
Reservations into Other Productive Uses, Creating the Bases
Conversion and Development Authority for this Purpose,
Providing Funds Therefor and for Other Purposes," approved
13 March 1992, to take effect upon its publication in a
newspaper of general circulation.
2 See "Action to Declare Unconstitutional Provisions of R.A.
7227 with Prohibition and Application for a Writ of Preliminary
Injunction," dated 7 April 1992, p. 6; Rollo p. 7.
3 Sec. 7, Art. IX-B, provides: "No elective official shall be
eligible for appointment or designation in any capacity to any
public office or position during his tenure.
"Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries."
4 Sec. 16, Art. VII, provides: "The President shall nominate
and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are not vested in him
in this Constitution. He shall also appoint all other officers of
the Government whose appointments are not otherwise
provided for by law, and those whom he may be authorized
by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President
alone, in the courts, or in the heads of departments,
agencies, commission, or boards.
"The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or until
the next adjournment of the Congress."
5 Petitioners allege that the proviso constitutes a "limitation to
the power of appointment of the President and therefore
violates the separation of powers" and that "Congress cannot
create the position and at the same time specify the person
to fill up such position" (Petition, pp. 4-5; Rollo, pp. 5-6).
6 G.R. Nos. 83896 and 83815 were consolidated and
decided jointly on 22 February 1991, 194 SCRA 317, 339.
7 Record of the Constitutional Commission, Vol. 1, p. 546.
8 Sec. 94. Appointment of Elective and Appointive Local
Officials; Candidates Who Lost in an Election. — (a) No
elective or appointive local official shall be eligible for
appointment or designation in any capacity to any public
office or position during his tenure.
"Unless otherwise allowed by law or by the primary functions
of his position, no elective or appointive local official shall
hold any other office or employment in the government or
any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
"(b) Except for losing candidates in barangay elections, no
candidate who lost in any election shall, within one (1) year
after such election, be appointed to any office in the
government or any government-owned or controlled
corporations or in any of their subsidiaries."
9 Sec. 9, Art. XII, of the Constitution.
10 Sec. 3, second par., Art. VII, of the Constitution.
11 Sec. 8, par. (1), Art. VIII, of the Constitution. This
particular provision was approved in anticipation of a
unicameral legislature. However, as it turn out, we adopted
instead a bicameral form of government so that the seat
allocated to the representative of Congress has to be split
between a member of the Senate and a member of the
House of Representative. Each being entitled to one-half
vote in the deliberations in the Judicial and Bar Council.
12 Record of the Constitutional Commission, Vol. 5, p. 156.
Section 4 of the Proposed Resolution No. 468, the precursor
of the first paragraph of Sec. 7, read: "Unless otherwise
provided by law, no elective official shall be eligible for
appointment or designation in a temporary or acting capacity
to any public office or position during his term" (Record of the
Constitutional Commission, Vol. 1, p. 524).
The following were reactions on the floor:
FR. BERNAS. On page 3, Section 4, line 5, the provision
begins with the phrase "Unless otherwise provided by law"
which does not exist in the 1973 Constitution. This was
inserted in a 1981 amendment. We know the reason why this
was put here. It practically renders the provision useless
because the whole matter becomes discretionary with the
legislature. It is one of those instance in the 1973
Constitution, as amended and constantly reamended, where
they threw in the phrase "Unless otherwise provided by law"
precisely to give the President a free hand in his decree-
making power.
xxx xxx xxx
MR. FOZ. As presently worded now, the provision would
allow the legislature to really provide otherwise, meaning, to
allow an elective official to be appointed to an executive
office. (Ibid., Vol. 1, p. 539.)
xxx xxx xxx
MR. COLAYCO . . . . The way I understand this is that we are
giving the legislature the power to authorize the appointment
or designation in a temporary or acting capacity of an elective
official to any public office or position during his term, Am I
right?
MR. FOZ. If a law is passed regarding this matter, then such
law may reverse this provision as worded, but we have said
earlier that we will entertain suggestions from the floor.
MR. COLAYCO. Personally, I find the policy established in
this provision meritorious. To make it a firm policy, I suggest
that we delete the prefatory phrase "Unless otherwise
provided by law.
MR. FOZ. We agree with the Commissioner (Ibid., Vol. 1, p.
549).
As revised, known later as Sec. 4 of Resolution No. 10, and
approved on third reading, the subject section read: "No
elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure" (Ibid., Vol. II, p. 788).
13 Supra, p. 335.
14 . . . . When, in the exigencies of government, it is
necessary to create and define new duties, the legislative
department has the discretion to determine whether
additional offices shall be created, or these duties shall be
attached to and become ex officio duties of existing offices.
The power extends to the consolidation of offices resulting in
abolishing one and attaching its powers and duties to the
other. It matters not that the name commission or board is
given to the body created . . . ." (Tayloe v. Davis, 212 Ala
282, 102 So. 433, 40 ALR 1052, 1057).
15 Transcripts of Session Proceedings, Senate, 6 February
1992, p. 57.
16 Sec. 8, Art. IX-B, provides: "No elective or appointive
public officer or employee shall receive additional, double, or
indirect compensation, unless specifically authorized by law,
nor accept without the consent of the Congress, any present,
emolument, office, or title of any kind from any foreign
government.
"Pensions or gratuities shall not be considered as additional,
double, or indirect compensation."
17 Black's Law Dictionary, 4th ed., p. 128 citing In re
Nicholson's Estate, 104 Colo, 561, 93 P. 2d 880, 884.
18 Ibid., citing State v. Braman, 173 Wis. 596, 181 N.W. 729,
730.
19 1987 ed., p. 180.
20 Floyd R. Mechem, A Treatise on the Law of Public Offices
and Officers (1890), p. 48, citing In Johnston v. Wilson, 2
N.H. 205, 9 Am. Dec. 50.
21 Mechem, ibid., citing Marbury v. Madison, I Cranch (U.S.)
137; Craig v. Norfolk, I Mod. 122.
22 Concepcion v. Paredes, No. 17539, 23 December 1921;
42 Phil. 599, 603, citing Keim vs. U.S. (1900), 177 U.S., 290.
23 G.R. No. 65439, 13 November 1985; 140 SCRA 22, 35.
24 While it is inarguable that Congress has plenary authority
to prescribe qualifications to a public office, it "may not
however prescribe qualifications such that the President is
entirely stripped of discretion, thus converting appointment to
a mere ministerial act" (Gonzales, Neptali A., Administrative
Law, Law on Public Officers and Election Law, 1966 ed., p.
173, citing Manalang v. Quitoriano, No. L-6898, 30 April
1954; 94 Phil. 903).
25 Record of the Constitutional Commission, vol. 1, p. 591.
 26 63 Am Jur 2d 678-679.
27 67 CJS 295.
28 Lino Luna v. Rodriguez and De los Angeles, No. 12647,
26 November 1917, 37 Phil, 186, 192 (emphasis supplied).
29 Transcripts of Session Proceedings, Senate, 29 January
1992, pp. 89-90.
30 Vanhorne v. Dorrance, 1 L. ed. 391, cited in Cruz, Isagani
A., Constitutional Law, 1987 ed., p. 7.
31 Cruz, Isagani A., Constitutional Law, supra.
The Lawphil Project - Arellano Law Foundation
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-2051             May 21, 1948
BERNARDO TORRES, protestant-appellant,
vs.
MAMERTO S. RIBO and ALEJANDRO BALDERIAN, respondents-
appellees.
Ramon Diokno, Mateo Canonoy, Olegario Lastrilla and Jose W. Diokno for
appellant.
Antonio Montilla, Francisco Astilla and Francisco Pajao for appellees.
TUAZON, J.:
This is an appeal from the order of the Court of First Instance of Leyte
dismissing a motion for a protest for provincial governor on the alleged
ground that the motion was filed out of time. The question turns upon whether
the period for filing the protest should be counted from the 22nd or from the
24th of November, 1947. The court below used the first date as the starting
point of computation.
The pertinent facts are these: The protestant, Bernardo Torres, and the
defendants, Mamerto S. Ribo and Alejandro Balderian, were opposing
candidates for provincial governor of Leyte in the general elections held on
November 11, 1947. As Mamerto S. Ribo, who was provincial governor, and
two members of the provincial board were candidates, they are disqualified to
form parts of the provincial board of canvassers of which they were to be
members under section 158 of the Revised Election Code. Consequently,
and in pursuance of Section 159, the Commission on Elections, in a telegram
to the provincial treasurer dated November 20 and received on November 21
in Tacloban, Leyte, appointed the division superintendent of schools, the
district engineer and the district health officer to replace the disqualified
members, with advice that they might assume office upon receipt of their
appointments. It so happened that the division superintendent of schools and
the district engineer were on that date on the west coast of the province and
did not return to Tacloban until the 24th. In the meantime, on November 22,
F. Martinez, provincial treasurer, as chairman, Gregorio Abogado, provincial
fiscal, Vicente Tizon, assistant civil engineer in the district engineer's office,
Evaristo Pascual, chief clerk in the office of the division superintendent of
schools, and W. Enage, acting district health officer, canvassed the votes for
provincial governor and other officers and proclaimed "Mamerto S. Ribo as
Governor-elect." Vicente Tizon and Evaristo Pascual sat as members
"representing the district engineer and the division superintendent of schools
respectively.
On November 24, 1947, the provincial board of canvassers again met, the
meeting this time being attended by the provincial treasurer, the provincial
fiscal, the district health officer, the division superintendent of schools, the
district engineer and the provincial auditor. In that meeting the board made a
new canvass of the votes and proclaimed Mamerto S. Ribo elected to the
office of provincial governor.
Were assistant civil engineer Vicente Tizon and chief clerk Evaristo Pascual
lawful members of the provincial board of canvassers? Judge Victoriano who
first took cognizance of the case decided this question on the negative. On a
motion for reconsideration Judge Edmundo Piccio, another judge sitting in
Tacloban, reversed Judge Victoriano's order. Judge Piccio said, "Verily it
would be absurd to suppose that in this kind of official commitments, the
District Engineer, the Division Superintendent of Schools could not be
represented by their Assistants who are in themselves competent and
qualified persons. . . it is unreasonable to sustain the arguments that the
District Engineer and the Division Superintendent of Schools could not
delegate their prerogatives because as contended, this power or prerogatives
belongs exclusively to the Commission on Elections.
A statement in a Judge Piccio's decision needs correction although the point,
in our view of the case, is not material. It does not appear, and there is no
pretense on the part of the protestee, that the division superintendent of
schools and the district engineer delegated their authority to Pascual and
Tizon. Upon whose instance or suggestion these two presumed to act in
representation of their chiefs is nor shown.
Section 158 of the Revised Election Code designates the officers who are to
comprise the provincial board of canvassers, and section 159 enumerates the
officers to be appointed substitute members by the Commission on Elections
in case of the absence or incapacity of any of the members named in the next
preceding section. They are the division superintendent of schools, the district
health officer, the register of deeds, the clerk of the Court of First Instance,
and the justice of the peace of the provincial capital.
This express enumeration excludes other officers. Expresio unius est
exclusio alterius. Not even the Commission on Elections may lawfully appoint
any of the person or officer outside of those mentioned. Much less may any
one other than this officers act as the member of the provincial board of
canvasser by delegation by a substitute members, by the indication of other
members of the board, or of his own volition. The appointment of a substitute
member is personal and restricted and his powers must be performed directly
and in person by the appointee. To hold otherwise would be to authorize the
appointment, say, by the provincial treasurer, the provincial auditor, or the
provincial fiscal of another person to act in his stead and thus take away from
the hands of the Commission on Elections the authority to appoint under
section 159.
An officer to whom a discretion is entrusted can not delegate it to another.
The powers of the board of canvassers are not purely ministerial, as the court
below erroneously holds. The board excercise quasi judicial functions, such
as the function and duty to determined whether the papers transmitted to
them are genuine election returns signed by the proper officers. Thus, where
what purports to be two or more returns from the same municipality are
received, the canvassing board must necessarily determine from the face of
the papers which one shall be regarded as the true and genuine return. (20
C. J., 201-202.).
In truth, there was presented to the board on the 22nd a matter which
required the used of the judgment. It appears from the minutes of the meeting
of that date that the returns from four municipalities were incomplete or
entirely missing, so much so that in accordance with section 161 the
provincial treasurer notified the provincial fiscal of that fact. The minutes read:
The report of the provincial treasurer, dated November 21, 1947, to
the Provincial fiscal, regarding missing election returns in certain
municipalities, that is not yet received by the provincial treasurer, was
read and considered by the Board. Also, certified statements by the
municipal treasurers of the municipalities concerned, showing the
votes cast in their municipalities as shown in their (treasurers') copies
of the election returns for which no copies for the provincial treasurer
were yet received, are also presented. In order not to delay the
canvassing, it was decided that such certified statements of the
respective municipal treasurers be taken at their face value in lieu of
the missing election returns. The municipalities affected are as
follows:
1. Hinunangan — (a) No election returns for board members in
Precinct No. 1. (b) No election return in Precinct No. 11.
2. Leyte — (a) No election returns to precincts No. 6 (b) No election
return for board members in Precinct No. 11. (Certified copies of
these election returns were received from the office of the Municipal
Treasurer in the course of the session of the Board of Canvassers.)
3. Pastrana — No election returns for governor and board members
in Precinct No. 1. (The missing returns were received from the
municipality in the course of the session of the Board.)
4. Merida — No election return for board members in Precinct No. 10.
Nevertheless, the Provincial Treasurer informed the Board that efforts
have been and are being exerted by his office to obtain said missing
election returns. As soon as they are received, authenticity of the said
municipal treasurers' statements will have to be considered from said
returns.
On this vital question Tizon and Pascual voted. This was not a ministerial or
mechanical task. That the returns subsequently received tallied with the
municipal treasurer's certificates does not cure the mistake committed.
Quite apart from the intervention of Tizon and Pascual in the canvass, we are
of the belief that the canvass was premature and illegal. Section 162 of the
Revised Election Code provides that "If it should clearly appear that some
requisite in form has been omitted in the statements, the board shall return
them by messenger or by another more expeditious means, to the
corresponding board of canvassers for correction." The board had before it
not defective returns but papers or documents that were not returns at all.
The requirement of section 160 that "the provincial board of canvassers shall
meet as soon as possible within fifteen days next following the day of
election" and that "as soon as all the statements are before it but not later
than fifteen days next following the date of the election, the provincial board
of canvassers shall proceed to make the canvass of all the votes cast in the
province for national, provincial and city candidates, etc." is merely directory
(20 C. J., 199) and does not legalize the making and completing of the
canvass before all the returns are in.
The protestee maintains that at any rate Pascual and Tizon were de facto
officers. This contention is without any foundation in law. An officer de facto is
one who has the reputation of being the officer he assumes to be, and yet is
not a good officer in point of law. He must have acted as an officer for such a
length of time, under color of title and under such circumstances of reputation
or acquiescence by the public and public authorities, as to afford a
presumption of appointment or election, and induce people, without injury,
and relying on the supposition that he is the officer he assumes to be, to
submit to or invoke his action. (46 C. J., 1053.)
Upon the foregoing considerations, our judgment is that the meeting of
November 22, 1947 of the provincial board of canvassers and the
proclamation in that meeting of the protestee were illegal and of no effect.
With this conclusion we refrain from discussing the other errors assigned by
the appellant.
The appealed order will be reversed with costs against the appellees. It is so
ordered.
Paras, Feria, Perfecto and Bengzon, JJ., concur.
The Lawphil Project - Arellano Law Foundation

Tizon and Pascual did not possess any of these conditions. They acted
without any appointment, commission or any color of title to the office. There Republic of the Philippines
was no acquiescence, public or private, in their discharge of the position. In SUPREME COURT
fact the very person most greatly affected by their assumption of the office, Manila
Bernardo Torres, was not notified and was not unaware of it.
FIRST DIVISION
Tizon and Pascual eliminated, there were only three lawful members sitting
on the board of canvassers on November 22. Under section 159 of the  
Revised Penal Code the provincial board of canvassers is to be composed of
six members — the provincial governor, the two members of the provincial G.R. No. 110544 October 17, 1995
board, the provincial treasurer, the provincial auditor and the provincial fiscal
— subject to be replaced by the officers named in the same section in case of REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros
their absence or disability. The Revised Election Code does not state the Oriental, HERMINIGILDO FABURADA, (former Vice-Mayor), SANTOS A.
number of the members of the canvassing board necessary to be present at VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL
the canvass. One court has held that when one member absents himself from LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A.
the session before completion of the canvass the acts of the remaining VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and
members of the board in completing the canvass and certifying the result FORMER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD,
were valid. (Ex parte Smith [Okl.] 154, page 521.) Some courts, however NEGROS ORIENTAL, petitioners,
have held that the canvassers cannot act unless all are present. (Chumasero vs.
vs. Patts, 2 Mont., 242 [writ of error dismissed 92 U. S., 358; 23 L. ed., 499].) THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME
BINAOHAN and DELIA ESTRELLANES, respondents.
We do not decide whether the presence of the six members of the board of
canvassers is essential. We leave this question open. Whatever the law, it is  
our considered opinion that the presence of the three members is not enough
compliance with the law. If it were, two would be, and even one. There must
KAPUNAN, J.:
at be a quorum, which is a majority of all the members, or one half their
number plus one. In the present case, four constitute the quorum. The
decisions just cited are very helpful on the other aspect of the case. They
served to emphasize the importance attached to the office of member of the
board of canvassers and the gravity and non-delegability of its functions and
duties.
Petitioners institute this special civil action for certiorari and prohibition under The undersigned Special Prosecution Officer of the Special
Rule 65 of the Revised Rules of Court to set aside the resolution of the Prosecutor, hereby accuses REYNALDO V. TUANDA,
Sandiganbayan dated 17 February 1992 and its orders dated 19 August 1992 HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR
and 13 May 1993 in Criminal Case No. 16936 entitled "People of the P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES,
Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for HACUBINA V. SERILLO, and SANTOS A. VILLANUEVA of
suspension of their arraignment. Violation of Section 3(e) of R.A. No. 3019, as amended,
committed as follows:
The present controversy arose from the following antecedents:
That during the period from February 1989 to
On 9 February 1989, private respondents Delia Estrellanes and Bartolome February 1991 and subsequent thereto, in
Binaohan were designated as industrial labor sectoral representative and the Municipality of Jimalalud, Negros
agricultural labor sectoral representative respectively, for the Sangguniang Oriental, and within the jurisdiction of this
Bayan of Jimalalud, Province of Negros Oriental by then Secretary Luis T. Honorable Court, accused, all public officers,
Santos of the Department of Local Government. Private respondents Mayor REYNALDO V. TUANDA, Vice-Mayor
Binaohan and Estrellanes took their oath of office on 16 February 1989 and HERMENEGILDO G. FABURADA,
17 February 1989, respectively. Sangguniang Members MANUEL LIM,
NICANOR P. AGOSTO, ERENIETA K.
MENDOZA, MAXIMO A. VIERNES,
Subsequently, petitioners filed an undated petition with the Office of the
HACUBINA V. SERILLO, ILUMINADO D.
President for review and recall of said designations. The latter, however, in a
ESTRELLANES and SANTOS A.
letter dated 20 March 1989, denied the petition and enjoined Mayor Reynaldo
VILLANUEVA while in the performance of
Tuanda to recognize private respondents as sectoral representatives.
their official functions and taking advantage
of their public positions, with evident bad
On 4 May 1990, private respondents filed a petition for mandamus with the faith, manifest partiality, and conspiring and
Regional Trial Court of Negros Oriental, Branch 35, docketed as Special Civil confederating with each other did, then and
Action No. 9661, for recognition as members of the Sangguniang Bayan. It there, wilfully and unlawfully cause undue
was dismissed on 23 July 1991. injury to Sectoral Members Bartolome M.
Binaohan and Delia T. Estrellanes by
Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial refusing to pay despite demand the amount
Court of Dumaguete City to declare null and void the designations of private of NINETY FIVE THOUSAND THREE
respondents as sectoral representatives, docketed as Civil Case No. 9955 HUNDRED FIFTY PESOS (P95,350.00) and
entitled "Reynaldo Tuanda, et al. versus Secretary of the Department of Local ONE HUNDRED EIGHT THOUSAND NINE
Government, et al." HUNDRED PESOS (P108,900.00)
representing respectively their per diems,
On 21 July 1991, an information was filed before the Sandiganbayan, salaries and other privileges and benefits,
docketed as Criminal Case No. 16936 entitled "People of the Philippines and such undue injury continuing to the
versus Reynaldo Tuanda, et al." charging petitioners thus: present to the prejudice and damage of
Bartolome Binaohan and Delia Estrellanes.
INFORMATION
CONTRARY TO LAW. 1

On 9 September 1991, petitioners filed a motion with the Sandiganbayan for

suspension of the proceedings in Criminal Case No. 16936 on the ground
that a prejudicial question exists in Civil Case No. 9955 pending before the
Regional Trial Court of Dumaguete City. 2
On 16 January 1992, the Regional Trial Court rendered a decision declaring
null and void ab initio the designations issued by the Department of Local
Government to the private respondents as sectoral representatives for having
been done in violation of Section 146 (2) of B.P. Blg. 337, otherwise known
as the Local Government Code. 3
The trial court expounded thus:
The Supreme Court in the case of Johnny D. Supangan Jr. v.
Luis T. Santos, et al., G.R. No. 84663, along with 7
companion cases of similar import, (G.R. Nos. 05012, 87601,
87602, 87792, 87935, 88072, and 90205) all promulgated on
August 24, 1990, ruled that:
B.P. Blg. 337 explicitly required that before
the President (or the Secretary of the
Department of Local Government) may
appoint members of the local legislative
bodies to represent the Industrial and
Agricultural Labor Sectors, there must be a
determination to be made by the Sanggunian
itself that the said sectors are of sufficient
number in the city or municipality to warrant
representation after consultation with
associations and persons belonging to the
sector concerned.
The Supreme Court further ruled —
For that matter, the Implementing Rules and
Regulations of the Local Government Code
even prescribe the time and manner by
which such determination is to be conducted
by the Sanggunian.
Consequently, in cases where the
Sanggunian concerned has not yet
determined that the Industrial and
Agricultural Labor Sectors in their particular
city or municipality are of sufficient number to
warrant representation, there will absolutely
be no basis for the
designation/appointments.
In the process of such inquiry as to the sufficiency in number
of the sector concerned to warrant representation, the
Sanggunian is enjoined by law (B.P. Blg. 337) to consult with
associations and persons belonging to the sector concerned.
Consultation with the sector concerned is made a pre-
requisite. This is so considering that those who belong to the
said sector are the ones primarily interested in being
represented in the Sanggunian. In the same aforecited case,
the Supreme Court considers such prior determination by the
Sanggunian itself (not by any other person or body) as a
condition sine qua non to a valid appointment or designation.
Since in the present case, there was total absence of the
required prior determination by the Sangguniang Bayan of
Jimalalud, this Court cannot help but declare the
designations of private defendants as sectoral
representatives null and void.
This verdict is not without precedence. In several similar
cases, the Supreme Court invariably nullified the
designations where the requirements of Sec. 146 (2), B.P.
Blg. 337 were not complied with. Just to cite one case, the
Supreme Court ruled:
There is no certification from the
Sangguniang Bayan of Valenzuela that the
sectors concerned are of sufficient number to
warrant representation and there was no
consultation whatsoever with the
associations and persons belonging to the
Industrial and Agricultural Labor Sectors.
Therefore, the appointment of private
respondents Romeo F. Bularan and Rafael
Cortez are null and void (Romeo Llanado, et
al. v. Hon. Luis Santos, et al., G.R. No.
86394, August 24, 1990). 4
Private respondents appealed the aforestated decision to the Court of
Appeals, docketed as CA-G.R. CV No. 36769, where the same is currently
pending resolution.
Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a
resolution denying the motion for suspension of proceedings filed by
petitioners. Said respondent Sandiganbayan:
 Despite the pendency of Civil Case No. 9955 of the Regional
Trial Court of Negros Oriental, it appears, nevertheless, that
the private complainants have been rendering services on
the basis of their respective appointments as sectoral
members of the Sangguniang Bayan of the Municipality of
Jimalalud, Negros Oriental; and that their said appointments
enjoy the presumption of regularity. Having rendered such
services, the private complainants are entitled to the salaries
attached to their office. Even assuming arguendo that the
said Regional Trial Court shall later decide that the said
appointments of the private complainants are null and void,
still the private complainants are entitled to their salaries and
compensation for service they have actually rendered, for the
reason that before such judicial declaration of nullity, the
private complainants are considered at least de facto public
officers acting as such on the basis of apparently valid
appointments issued by competent authorities. In other
words, regardless of the decision that may be rendered in
Civil Case
No. 9955, the private complainants are entitled to their
withheld salaries for the services they have actually rendered
as sectoral representatives of the said Sangguniang Bayan.
Hence, the decision that may be rendered by the Regional
Trial Court in Civil Case No. 9955 would not be determinative
of the innocence or guilt of the accused.
WHEREFORE, the subject Petition for the Suspension of
Proceedings in Virtue of Prejudicial Question filed by the
accused through counsel, is hereby DENIED for lack of merit.
SO ORDERED. 5
Petitioners filed a motion for reconsideration of the aforementioned resolution
in view of the decision promulgated by the trial court nullifying the
appointments of private respondents but it was, likewise, denied in an order
issued by respondent Sandiganbayan on 19 August 1992 on the justification
that the grounds stated in the said motion were a mere rehash of petitioners'
original motion to hold the case in abeyance. 6 The dispositive portion of its
order reads as follows:
WHEREFORE, in view of the foregoing, the arraignment of
the accused which was scheduled today is cancelled. Mayor
Reynaldo Tuanda, Hermenegildo Faburada, Nicanor P.
Agosto, Erenieta K. Mendoza, Hacubina V. Serillo and
Iluminado Estrellanes are, however, hereby ordered to show
cause in writing within ten (10) days from service hereof why
they should not be cited for contempt of court for their failure
to appear in court today for arraignment.
In case of an adverse resolution on the motion to quash
which is to be filed by the counsel for the defense, set this
case for arraignment, pre-trial and trial on January 4 & 5,
1993, on all dates the trial to start at 8:30 o'clock in the
morning.
SO ORDERED. 7
On 19 February 1993, respondent Sandiganbayan issued an order holding
consideration of all incidents pending the issuance of an extended resolution.
8
No such resolution, however, was issued and in its assailed order dated 13
May 1992, respondent Sandiganbayan set the arraignment of petitioners on
30 June 1993. The dispositive portion of the order reads:
WHEREFORE, considering the absence of the accused from
the scheduled hearing today which We deem to be
excusable, reset this case for arraignment on June 30, 1993
and for trial on the merits on June 30 and July 1 and 2, 1993,
on all dates the trial to start at 8:30 o'clock in the morning.
Give proper notice to the accused and principal counsel, Atty.
Alfonso Briones. Considering that the accused come all the
way from Himalalud, Negros Oriental, no postponement will
be allowed.
SO ORDERED. 9
Hence, this special civil action for certiorari and prohibition where petitioners
attribute to respondent Sandiganbayan the following errors:
A. The Respondent Court committed grave abuse of
discretion in denying petitioners' motions for the suspension
of the proceedings in Criminal Case No. 16936 in spite of the
pendency of a prejudicial issue before the Court of Appeals
in CA-G.R. CV No. 36769;
B. The Respondent Court acted without or in excess of
jurisdiction in refusing to suspend the proceedings that would
entail a retrial and rehearing by it of the basic issue involved,
i.e., the validity of the appointments of private respondents
 and their entitlement to compensation which is already
pending resolution by the Court of Appeals in C.A. G.R. CV
No. 36769; and
C. The Respondent Court committed grave abuse of
discretion and/or acted without or in excess of jurisdiction in
effectively allowing petitioners to be prosecuted under two
alternative theories that private respondents are de jure
and/or de facto officers in violation of petitioners' right to due
process. 10
In sum, the only issue in the case at bench is whether or not the legality or
validity of private respondents' designation as sectoral representatives which
is pending resolution in CA-G.R. No. 36769 is a prejudicial question justifying
suspension of the proceedings in the criminal case against petitioners.
A prejudicial question is one that must be decided before any criminal
prosecution may be instituted or before it may proceed (see Art. 36, Civil
Code) because a decision on that point is vital to the eventual judgment in the
criminal case. Thus, the resolution of the prejudicial question is a logical
antecedent of the issues involved in said criminal case. 11
A prejudicial question is defined as that which arises in a case the resolution
of which is a logical antecedent of the issue involved therein, and the
cognizance of which pertains to another tribunal. The prejudicial question
must be determinative of the case before the court but the jurisdiction to try
and resolve the question must be lodged in another court or tribunal. 12 It is a
question based on a fact distinct and separate from "the crime but so
intimately connected with it that it determines the guilt or innocence of the
accused, and for it to suspend the criminal action, it must appear not only that
said case involves facts intimately related to those upon which the criminal
prosecution would be based but also that in the resolution of the issue or
issues raised in the civil case, the guilt or innocence of the accused would
necessarily be determined. It comes into play generally in a situation where a
civil action and a criminal action are both pending and there exists in the
former an issue which must be preemptively resolved before the criminal
action may proceed, because howsoever the issue raised in the civil action is
resolved would be determinative juris et de jure of the guilt or innocence of
the accused in the criminal case." 13
The rationale behind the principle of prejudicial question is to avoid two
conflicting decisions. 14 It has two essential elements:
(a) the civil action involves an issue similar or intimately
related to the issue raised in the criminal action; and
(b) the resolution of such issue determines whether or not the
criminal action may proceed. 15
Applying the foregoing principles to the case at bench, we find that the issue
in the civil case, CA-G.R. CV No. 36769, constitutes a valid prejudicial
question to warrant suspension of the arraignment and further proceedings in
the criminal case against petitioners.
All the elements of a prejudicial question are clearly and unmistakably
present in this case. There is no doubt that the facts and issues involved in
the civil action (No. 36769) and the criminal case (No. 16936) are closely
related. The filing of the criminal case was premised on petitioners' alleged
partiality and evident bad faith in not paying private respondents' salaries and
per diems as sectoral representatives, while the civil action was instituted
precisely to resolve whether or not the designations of private respondents as
sectoral representatives were made in accordance with law.
More importantly, ,the resolution of the civil case will certainly determine if
there will still be any reason to proceed with the criminal action.
Petitioners were criminally charged under the Anti-Graft & Corrupt Practices
Act (RA 3019, sec, 3[e]) due to their refusal, allegedly in bad faith and with
manifest partiality, to pay private respondents' salaries as sectoral
representatives. This refusal, however, was anchored on petitioners'
assertion that said designations were made in violation of the Local
Government Code (B.P. Blg. 337) and thus, were null and void. Therefore,
should the Court of Appeals uphold the trial court's decision declaring null and
void private respondents' designations as sectoral representatives for failure
to comply with the provisions of the Local Government Code (B.P. Blg. 337,
sec. 146[2]), the charges against petitioners would no longer, so to speak,
have a leg to stand on. Petitioners cannot be accused of bad faith and
partiality there being in the first place no obligation on their part to pay private
respondents' claims. Private respondents do not have any legal right to
demand salaries, per diems and other benefits. In other words, the Court of
Appeals' resolution of the issues raised in the civil action will ultimately
determine whether or not there is basis to proceed with the criminal case.
Private respondents insist that even if their designations are nullified, they are
entitled to compensation for actual services rendered. 16 We disagree. As
found by the trial court and as borne out by the records, from the start, private
respondents' designations as sectoral representatives have been challenged
by petitioners. They began with a petition filed with the Office of the President
copies of which were received by private respondents on 26 February 1989,
barely eight (8) days after they took their oath of office. 17 Hence, private
respondents' claim that they have actually rendered services as sectoral
representatives has not been established.
Finally, we find unmeritorious respondent Sandiganbayan's thesis that even 6 Id., at 30.
in the event that private respondents' designations are finally declared invalid,
they may still be considered de facto public officers entitled to compensation 7 Id., at 31.
for services actually rendered.
8 Id., at 82.
The conditions and elements of de facto officership are the following:
9 Id., at 29.
1) There must be a de jure office;
10 Id., at 13-14.
2) There must be color of right or general acquiescence by
the public; and 11 Edgardo C. Paras, Rules of Court Annotated Vol.
Three, 1990, citing People v. Aragon, L-5930, 17
3) There must be actual physical possession of the office in Feb. 1954.
good faith. 18
12 Yap v. Paras, 205 SCRA 625 (1994); Quiambao
One can qualify as a de facto officer only if all the aforestated elements are v. Osorio, 158 SCRA 674 (1988); Donato v. Luna,
present. There can be no de facto officer where there is no de jure office, 160 SCRA 441 (1988); Ras v. Rasul, 100 SCRA 125
although there may be a de facto officer in a de jure office. 19 (1980).

WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 13 Librodo v. Coscolluela, Jr., 116 SCRA 303 (1982):
August 1992 and 13 May 1993 of respondent Sandiganbayan in Criminal see also Apa, et al. v. Fernandez, et al., G.R. No.
Case No. 16936 are hereby SET ASIDE. Respondent Sandiganbayan is 112381, March 20, 1995.
enjoined from proceeding with the arraignment and trial of petitioners in
Criminal Case No. 16936 pending final resolution of CA-G.R. CV No. 36769. 14 Developments In The Law On Prejudicial
Questions, 44 SCRA 208 (1972).
SO ORDERED.
15 Sec. 5, Rule III of Revised Rules of Court; Yap v.
Padilla, Davide, Jr. and Bellosillo, JJ., concur. Paras, supra, Umali v. IAC, 186 SCRA 680 (1990).

Hermosisima, Jr., J., took no part. 16 Rollo, p. 92.

Footnotes 17 Id., at 52-53.

1 Rollo, pp. 36-37. 18 Hector S. De Leon and Hector M. De Leon, Jr.,

Law on Public Officers and Election Law, 1990 ed.,
2 Id., at 38-50. pp. 87-88.

3 Id., at 51-60. 19 Government of the Philippine Islands v. Springer,

50 Phil. 259.
4 Id., at 59-61.

5 Id., at 34-35. The Lawphil Project - Arellano Law Foundation

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-23258             July 1, 1967
ROBERTO R. MONROY, petitioner,
vs.
HON. COURT OF APPEALS and FELIPE DEL ROSARIO, respondent.
E. M. Fernando, E. Quisumbing-Fernando and Norberto Quisumbing for
petitioner.
Sycip, Salazar, Luna and Associates for respondents.
BENGZON, J.P., J.:
Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when
on September 15, 1961, his certificate of candidacy as representative of the
first district of Rizal in the forthcoming elections was filed with the
Commission on Elections. Three days later, or on September 18, 1961,
petitioner filed a letter withdrawing said certificate of candidacy. The
Commission on Elections, per resolution,1 approved the withdrawal. But on
September 21, 1961, respondent Felipe del Rosario, then the vice-mayor of
Navotas, took his oath of office as municipal mayor on the theory that
petitioner had forfeited the said office upon his filing of the certificate of
candidacy in question.
Upon these facts, the Court of First Instance of Rizal, held in the suit for
injunction instituted by petitioner against respondents that (a) the former had
ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was
filed on September 15, 1961; (b) respondent del Rosario became municipal
mayor upon his having assumed office as such on September 21, 1961; (c)
petitioner must reimburse, as actual damages, the salaries to which
respondent was entitled as Mayor from September 21, 1961 up to the time he
can reassume said office; and (d) petitioner must pay respondent P1,000.00
as moral damages.1äwphï1.ñët
This judgment was, on appeal by petitioner to the Court of Appeals, affirmed
in toto except for the award of moral damages which was eliminated. The
same Court reaffirmed its stand upon petitioner's filing a motion to reconsider.
Hence, this petition for certiorari to review the ruling of the Court of Appeals.
Petitioner first argues that both the lower court and the Court of Appeals had
done what they had no jurisdiction to do — review a resolution of the
Commission on Elections. The submission is without merit.
The Constitution empowers the Commission on Elections to
x x x decide, save those involving the right to vote, all administrative
questions affecting elections, including the determination of the
number and location of polling places, and the appointment of
election inspectors and of other election officials x x x . 2 (Emphasis
supplied)
And the decisions, orders and rulings of the Commission on these
administrative questions are reviewable only by the Supreme Court. 3 Since
the powers of the Commission are limited to matters connected with the
"conduct of elections," necessarily its adjudicatory or quasi-judicial powers
are likewise limited to controversies connected with the "conduct of
elections." This phrase covers all the administrative process of preparing and
operating the election machinery so that the people could exercise their right
to vote at the given time.4 All questions and controversies that may arise
therefrom are to be resolved exclusively by the Commission, subject to
review only by the Supreme Court.
However, in this case there appears to be no decision, order or ruling of the
Commission on any administrative question or controversy. There was no
dispute before the Commission. Respondent never contested the filing of
petitioner's certificate of candidacy. Neither has he disputed before that body
the withdrawal thereof. And even if there was a controversy before the
Commission, the same did not and could not possibly have anything to do
with the conduct of elections. What the parties are actually controverting is
whether or not petitioner was still the municipal mayor after September 15,
1961. This purely legal dispute has absolutely no bearing or effect on the
conduct of the elections for the seat of Congressman for the first district of
Rizal. The election can go on irrespective of whether petitioner is considered
resigned from his position of municipal mayor or not. The only interest and for
that matter, jurisdiction, of the Commission on Elections in this regard is to
know who are the running candidates for the forthcoming elections, for that
affects the conduct of election. So when petitioner withdrew the certificate
announcing his candidacy for Congressman, as far as the Commission could
be concerned, petitioner was no longer interested in running for that seat. The
matter of his having forfeited his present position and the possible legal effect
thereon by the withdrawal of his certificate was completely out of the picture.
Hence, that purely legal question properly fell within the cognizance of the
courts.
Now the withdrawal of his certificate of candidacy did not restore petitioner to
his former position. Sec. 27 of the Rev. Election Code providing that —
Any elective provincial, municipal or city official running for an office,
other then the one which he is actually holding, shall be considered
resigned from his office from the moment of the filing of his certificate
of candidacy,"
makes the forfeiture automatic and permanently effective upon the filing of
the certificate of for another office. Only the moment and act of filing are
considered. Once the certificate is filed, the seat is forfeited forever and
nothing save a new election or appointment can restore the ousted official.
Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro
v. Gatuslao, 98 Phil, 94, 196:
x x x The wording of the law plainly indicates that only the date of
filing of the certificate of candidacy should be taken into account. The
law does not make the forfeiture dependent upon future
contingencies, unforeseen and unforeseeable since the vacating is
expressly made as of the moment of the filing of the certificate of
candidacy x x x . (Emphasis supplied)
Petitioner's contention that the certificate of candidacy was filed without his
knowledge and consent and, hence, the Commission's approval of its
withdrawal invalidated such certificate for all legal purposes, is untenable. It
nowhere appears that the Commission's resolution expressly invalidated the
certificate. The withdrawal of a certificate of candidacy does not necessarily
render the certificate void ab initio. Once filed, the permanent legal effects
produced thereby remain even if the certificate itself be subsequently
withdrawn. Moreover, both the trial court and the Court of Appeals expressly
found as a fact that the certificate in question was filed with petitioner's
knowledge and consent. And since the nature of the remedy taken by
petitioner before Us would allow a discussion of purely legal questions only,
such fact is deemed conceded.5
Petitioner would next maintain that respondent Court of Appeals likewise
erred in affirming a lower court judgment requiring petitioner to pay
respondent Del Rosario by way of actual damages the salaries he was
allegedly entitled to receive from September 21, 1961, to the date of
petitioner's vacation of his office as mayor. In support of this he relies solely
upon Rodriguez v. Tan, 91 Phil. 724, holding that a senator who had been
proclaimed and had assumed office but was later on ousted in an election
protest, is a de facto officer during the time he held the office of senator, and
can retain the emoluments received even as against the successful
protestant. Petitioner's factual premise is the appellate court's finding that he
was a de facto officer when he continued occupying the office of mayor after
September 15, 1961.
However, We agree with the Court of Appeals that the Rodriguez case is not
applicable here for absence of factual and legal similarities. The Rodriguez
case involved a senator who had been proclaimed as duly elected, assumed
the office and was subsequently ousted as a result of an election contest.
These peculiar facts called for the application of an established precedent in
this jurisdiction that the candidate duly proclaimed must assume office
notwithstanding a protest filed against him and can retain the compensation
paid during his incumbency. But the case at bar does not involve a
proclaimed elective official who will be ousted because of an election contest.
The present case for injunction and quo warranto involves the forfeiture of the
office of municipal mayor by the incumbent occupant thereof and the claim to
that office by the vice-mayor because of the operation of Sec. 27 of the Rev.
Election Code. The established precedent invoked in the Rodriguez case can
not therefore be applied in this case.
It is the general rule then, i.e., "that the rightful incumbent of a public office
may recover from an officer de facto the salary received by the latter during
the time of his wrongful tenure, even though he entered into the office in good
faith and under color of title"6 that applies in the present case. The resulting
hardship occasioned by the operation of this rule to the de facto officer who
did actual work is recognized; but it is far more cogently acknowledged that
the de facto doctrine has been formulated, not for the protection of the de
facto officer principally, but rather for the protection of the public and
individuals who get involved in the official acts of persons discharging the
duties of an office without being lawful officers.7 The question of
compensation involves different principles and concepts however. Here, it is
possession of title, not of the office, that is decisive. A de facto officer, not
having good title, takes the salaries at his risk and must therefore account to
the de jure officer for whatever amount of salary he received during the period
of his wrongful retention of the public office.8
Wherefore, finding no error in the judgment appealed from, the same is, as it
is hereby, affirmed in toto. Costs against petitioner. So ordered.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, and Angeles, JJ.,
concur. G.R. No. 129616            April 17, 2002
Arsenio, J., is on leave.
Sanchez, Castro and Fernando, JJ., took no part.
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and
RAMON ANINO, petitioners,
Footnotes vs.
JULIETA MONSERATE, respondent.
1
The records of this case do not include a copy of this resolution.
Hence, it nowhere appears when this resolution was issued. SANDOVAL-GUTIERREZ, J.:
2
Philippine Constitution, Art. X, sec. 2. This petition for review on certiorari1 seeks to set aside the Decision dated
June 20, 1997 of the Court of Appeals in CA-G.R. No. 39670, 2 declaring null
3
Ibid; see also: Sec. 5, Rev. Election Code. and void the Resolution No. 952043 dated March 21, 1995 and Resolution
No. 956640 dated October 24, 1995 of the Civil Service Commission (CSC),
4
See: Guevara vs. Commission on Elections, L-12596, July 31, 1958. and ordering the reinstatement of Julieta G. Monserate as Division Manager
II of the Resources Management Division, Ports Management Office,
5
See: Ramos v. Pepsi-Cola, L-22533, Feb. 9, 1967. Philippine Ports Authority (PPA), Iloilo City.

6
Walker v. Hughes, 36 A 2d 47, 151 ALR 946, 949-950. The facts are:

7
See: 2 Tañada & Carreon, Political Law of the Phils., 1962, pp. 544- Julieta Monserate, respondent, started her government service in
545. 1977 as Bookkeeper II in the Port Management Office, PPA, Iloilo
City. Barely a year later, she was promoted to the position of Cashier
8 II and then as Finance Officer (SG-16) in 1980. 3
Walker vs. Hughes, supra.
In the early part of 1988, when the PPA underwent a reorganization,
respondent applied for the permanent position of Manager II (SG-19) of the
The Lawphil Project - Arellano Law Foundation Resource Management Division, same office. The Comparative Data Sheet 4
accomplished by the PPA Reorganization Task Force shows the ranking of
PHILIPPINE JURISPRUDENCE - FULL TEXT the six (6) aspirants to the said position, thus:
The Lawphil Project - Arellano Law Foundation
G.R. No. 129616           April 17, 2002
THE GENERAL MANAGER, PHILIPPINE PORTS
AUTHORITY (PPA), ET AL. vs. JULIETA "COMPARATIVE DATA SHEET
MONSERATE
OFFICE: PMO ILOILO

DIVISION: RES. MANAGEMENT DIVISION

Republic of the Philippines
SUPREME COURT POSITION: DIVISION MANAGER
Baguio City
REQUIRED CS ELIG.: CS PROF / RA 1080
THIRD DIVISION
ELIGIBILITY xxx
CANDIDATES
 1. MONSERATE, JULIETA CS Prof. xxx

2. ANINO, RAMON 1st grade xxx

3. TEODOSIO, APRIL PD 907 (CPA) xxx

4. MORTOLA, DARIO CS Prof. xxx

5. ESPINOSA, AMALIK Bar xxx

6. PERFECTO, BASCOS RA 1080 xxx

On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the
PPA, appointed5 respondent to the position of Manager II (Resource
Management Division). On even date, respondent assumed office and
discharged the functions thereof. On July 8, 1988, the CSC, through
Guillermo R. Silva (Assistant Director of the Civil Service Field Office-PPA)
approved her appointment.

Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to
respondent per the Comparative Data Sheet earlier quoted, filed an
appeal/petition with the PPA Appeals Board, protesting against respondent's
appointment. The PPA Appeals Board, in a Resolution 6 dated August 11,
1988, sustained the protest and rendered ineffective respondent's
appointment based on "(1) CSC MC No. 5, s. 1988, Par. 3; 7 (2) CSC MC NO.
10, s. 1986, Par. A, 1.2 and Par. B;8 and (3) Civil Service Eligibility." These
grounds were not explained or discussed in the Resolution, the dispositive
portion of which reads:

"WHEREFORE, premises considered, this Board upholds the

appointment of Ramon A. Anino as Resources Management Division
Manager of the Port Management Office of Iloilo."

On October 24, 1988, respondent was furnished a copy of PPA Special

Order No. 479-889 (entitled "Creation of the PPA Manager's Pool"), dated
September 28, 1988, issued by the new PPA General Manager, Mr. Rogelio
A. Dayan. That Special Order excluded the name of respondent from the
pool-list and placed instead the name of petitioner as Manager II, Resource
Management Division. In effect, the Special Order implemented the August
11, 1988 Resolution of the PPA Appeals Board. 1âwphi1.nêt

Aggrieved, respondent filed with the PPA General Manager an

appeal/request for clarification dated November 2, 1988. 10 She questioned
her replacement under PPA Special Order No. 479-88, claiming that the
proceedings before the PPA Appeals Board were irregular because (1) she
was not notified of the hearing before it; (2) she was not furnished a copy of
the August 11, 1988 PPA Appeals Board Resolution or a copy of the protest
filed by petitioner Anino;11 (3) she was not informed of the reasons behind her
replacement; and (4) their Port Manager (in Iloilo City), who was then an
official member of the Board, was not included in the said proceedings.
On November 8, 1988, pending resolution of her appeal/request for
clarification, respondent received a copy of PPA Special Order No. 492-88 12
dated October 21, 1988, also issued by General Manager Dayan. This PPA
Order officially reassigned her to the position of Administrative Officer (SG-
15) which was petitioner Anino's former position and was lower than her
previous position as Finance Officer (SG 16) before she was appointed as
Division Manager.
Apparently at a loss with the turn of events, coupled by the inaction of PPA
General Manager Dayan on her earlier appeal/request for clarification,
respondent filed on November 25, 1988 a "precautionary appeal" 13 with the
CSC. She manifested that as of said date (November 25), she has not yet
been furnished a certified copy of the PPA Appeals Board Resolution.
On January 2, 1989, respondent received a copy of her new appointment as
Administrative Officer dated October 1, 1988.14 It was also during this time
when she learned that PPA General Manager Dayan had just issued
petitioner's appointment dated October 21, 1988 as Manager II in the
Resource Management Division effective February 1, 1988.
On January 16, 1989, respondent filed with the CSC an appeal formally
protesting against petitioner Anino's appointment and at the same time
questioning the propriety of the August 11, 1988 Resolution of the PPA
Appeals Board. This appeal remained pending with the CSC for more than
six (6) years despite respondent's requests for early resolution. In the
meantime, she assumed the position of Administrative Officer.
Eventually, the CSC, in its Resolution No. 95-204315 dated March 21, 1995,
dismissed respondent's appeal, thus:
"It is well-established rule that an appointment, although approved by
this Commission, does not become final until the protest filed against
it is decided by the agency or by the Commission. Although
Monserate had already assumed the position of RMD Manager II, the
appointing authority may still withdraw the same if a protest is
seasonably filed. This is covered by Section 19, Rule VI of the
Omnibus Rules implementing EO 292 x x x.
"Monserate's claim that she is more qualified than Anino is not
relevant to the issue before this Commission. In cases of protest filed
or appealed to the Commission, the main question to be resolved is
whether or not the appointee meets the qualification standard. x x x.
The Commission will not disturb the choice of the appointing
authority as long as the appointee meets the qualification prescribed
for the position in question."
Respondent filed a motion for reconsideration but the same was denied by
the CSC in its Resolution No. 95-6640 dated October 24, 1995.
In due time, respondent filed with the Court of Appeals a petition for review
impleading as respondents the PPA General Manager and petitioner Anino.
On June 20, 1997, the Court of Appeals rendered a Decision 16 nullifying the
twin Resolutions of the CSC. It ruled that the August 11, 1988 Resolution of
the PPA Appeals Board was not supported by evidence and that the same
was irregularly issued due to lack of proper notice to respondent with respect
to the Board's proceedings. It concluded that her reassignment from the
position of Manager II, Resource Management Division (SG-19), to the
position of Administrative Officer (SG-15) was a demotion violative of her
constitutional right to security of tenure and due process. The dispositive
portion of the Court of Appeals' Decision reads:
"THE FOREGOING CONSIDERED, judgment is hereby rendered
declaring as null and void Resolution Nos. 952043 and 95640
(should be 956640) dated March 21 and October 21, 1988 (should
be October 24, 1995), of the Civil service Commission; and directing
the reinstatement of the petitioner to the position of Resource
Management Division Manager II.
"SO ORDERED."
Thereupon, Ramon Anino and the PPA General Manager filed on August 14,
1997 the present petition. On November 30, 1997, petitioner Anino retired
from the government service.17
Petitioners ascribe to the Court of Appeals the following errors:
I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING
THAT RESPONDENT MONSERATE WAS DEMOTED FROM
RESOURCES MANAGEMENT DIVISION MANAGER TO
ADMINISTRATIVE OFFICER, THUS VIOLATING HER RIGHT TO
SECURITY OF TENURE.
 II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING
ITSELF WITH THE WELL-NIGH RULE THAT RESPONDENT
MONSERATE'S APPOINTMENT AS RESOURCE MANAGEMENT
DIVISION MANAGER, ALTHOUGH APPROVED BY CSC, DOES
NOT BECOME FINAL UNTIL THE PROTEST FILED AGAINST HER
IS FAVORABLY DECIDED IN HER FAVOR BY THE AGENCY OR
THE CSC.
III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR
OF JUDGMENT IN IGNORING THAT IN CASES OF PROTEST
FILED OR APPEALED TO THE CSC, THE MAIN QUESTION TO BE
RESOLVED IS WHETHER OR NOT THE APPOINTEE MEETS THE
QUALIFICATION STANDARD.18
The pivotal issue in this case is whether or not there was due process when
respondent was replaced by petitioner Anino from her position as Manager II,
Resource Management Division, and demoted as Administrative Officer.
Petitioners vehemently aver that respondent was never demoted since
demotion, being in the nature of administrative penalty, presupposes a
conviction in an administrative case. Here, respondent was not charged of
any administrative case. Rather, she was displaced from her position as an
"aftermath of the PPA reorganization, authorized by law, the implementation
of which having been carried out with utmost good faith."
Furthermore, the said displacement was just the necessary effect of the
August 11, 1988 Resolution of the PPA Appeals Board which sustained
petitioner Anino's timely protest against respondent's appointment.
Petitioners theorize that the appointment of respondent as Resource
Management Division Manager did not become final until the protest filed
against her was favorably decided in her favor by the CSC. In support of this
contention, they cited Section 19, Rule VI of the Omnibus Rules
Implementing Book V of Executive Order No. 292 (otherwise known as the
Administrative Code of 1987), which provides inter alia:
"SEC 19. An appointment, though contested, shall take effect
immediately upon its issuance if the appointee assumes the duties of
the position and the appointee is entitled to receive the salary
attached to the position. However, the appointment, together with the
decision of the department head, shall be submitted to the
Commission for appropriate action within 30 days from the date of its
issuance, otherwise the appointment becomes ineffective thereafter.
Likewise, such appointment shall become ineffective in case the
protest is finally resolved against the protestee, in which case,
he shall be reverted to his former position."
Petitioners also contend that the head of an agency, being the appointing
authority, is the one most knowledgeable to decide who can best perform the
functions of the office. The appointing authority has a wide latitude of choice
subject only to the condition that the appointee should possess the
qualifications required by law. Consequently, "the CSC acted rightly when it
did not interfere in the exercise of discretion by the PPA appointing authority,
there being no evidence of grave abuse of discretion thereof or violation of
the Civil Service Law and Rules."
The petition is unmeritorious.
In the first place, the PPA reorganization in 1988 has nothing to do with
respondent's demotion from the contested position of Manager II, Resource
Management Office (SG-19), to the lower position of Administrative Officer
(SG-15). Antithetically, it was precisely because of the said reorganization
that respondent applied to the higher position of Division Manager II. In fact,
the Comparative Data Sheet accomplished by the PPA Reorganization Task
Force itself shows that respondent ranked No. 1, while petitioner Anino
ranked No. 2, from among the six (6) contenders to the said post.
Respondent was eventually issued a permanent appointment as such
Division Manager on February 1, 1988 by then PPA General Maximo
Dumlao, Jr., during which time she actually assumed office and discharged
its functions. This appointment was later approved on July 8, 1988 by the
CSC, through Assistant Director Guillermo R. Silva of the Civil Service Field
Office-PPA.
Clearly, it was only after the reorganization and upon the issuance of the
August 11, 1988 Resolution of the PPA Appeals Board when respondent was
demoted to the lower position of Administrative Officer. This is further shown
by the following orders and appointments subsequently issued by then PPA
General Manager Rogelio Dayan:
1. PPA Special Order No. 479-88 dated September 28, 1988 which
excluded respondent Monserate from the PPA Managers' pool-list;
2. Appointment of respondent, dated October 1, 1988, to the position
of Administrative Officer;
3. PPA Special Order No. 492-88 dated October 21, 1988 which
officially reassigned respondent to the position of Administrative
Officer; and
 4. Appointment of petitioner Anino, dated October 21, 1988, to the
position of Manager II, Resource Management Division, effective
February 1, 1988.
Therefore, contrary to petitioners' claim, respondent was demoted, not by
reason of the PPA reorganization in 1988, but due to the PPA Appeals Board
Resolution dated August 11, 1988 sustaining petitioner Anino's protest
against respondent's appointment.
Unfortunately for petitioners, this Court cannot accord validity to the August
11, 1988 Resolution of the PPA Appeals Board which "upholds the
appointment of Ramon A. Anino as Resource Management Division
Manager." But how can it uphold his appointment when he was not yet
appointed then? It bears stressing that he was appointed on a much later
date - October 21, 1988, or more than two (2) months after August 11,
1998 when the PPA Appeals Board Resolution was issued. Stated
differently, the PPA Appeals Board could not uphold an appointment which
was not yet existing.
Equally questionable are the grounds for respondent's demotion stated in the
August 11, 1998 Resolution: "(1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC
MC NO. 10, s. 1986, Par. A, 1.2 and Par. B; and (3) Civil Service Eligibility."
These grounds are incomprehensible for lack of discussion or explanation by
the Board to enable respondent to know the reason for her demotion.
We uphold the Court of Appeals' finding that the August 11, 1998 PPA
Appeals Board Resolution was void for lack of evidence and proper notice to
respondent. As aptly held by the Appellate Court:
"In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid.,
p. 46) upholding the appointment of the private respondent (Ramon
Anino) as Division Manager, the grounds against petitioner's (Julieta
Monserate) appointment were: a) the CSC MC No. 5, s. 1988, Par 3;
b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par. B; and c) Civil
service eligibility.
"x x x
"To us, the August 11, 1988 Resolution by the PPA Appeals Board
was not supported by evidence. Of the CSC MC No. 5, the petitioner
had no pending administrative or criminal case at the time of her
appointment as Manager. x x x.
"With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the
processing, review, evaluation and recommendation of her
appointment as Manager II, passed several committees created by
the PPA. x x x. Moreover, she had a 1.9 average performance rating
compared to the private respondent who only got 2.03. x x x.
"On eligibility, she has a Career Service Professional eligibility while
the private respondent only has a First Grade Civil Service Eligibility.
"She added that she was not aware of any proceeding on her
demotion as a Division Manager. As a matter of fact, it was only upon
her iniative sometime during the latter part of November, 1988 that
she was able to obtain a copy of the August 11, 1988 Resolution of
the Appeals Board. The resolution sustained the private respondent's
appointment as Division Manager even if on August 11, 1988, he
was not yet extended any appointment. As a matter of fact, he was
appointed only on October 1, 1988 (should be October 21, 1988).
"Furthermore, she said that the resolution of the PPA Appeals Board
appears irregular, if not null and void. She was never notified of any
proceeding; she was not furnished either a copy of the resolution.
What she received instead was a Special Order dated September 29,
1988 already ordering her demotion. She was not at all given the
opportunity of defending herself before the Appeals Board.
"x x x.
"In the case now before us, the petitioner did not receive or was not
given a copy of the August 11, 1988 Resolution of the Appeals
Board. She did not even know that she was demoted until after she
received a copy of the of the Special Order No. 479-88." 19
From all indications, it is indubitable that substantial and procedural
irregularities attended respondent's demotion from the position of Manager II,
Resource Management Division, to the lower position of Administrative
Officer. Indeed, her demotion, tantamount to a revocation of her appointment
as Manager II, is a patent violation of her constitutional rights to security of
tenure and due process. In Aquino vs. Civil Service Commission,20 this Court
emphasized that "once an appointment is issued and the moment the
appointee assumes a position in the civil service under a completed
appointment, he acquires a legal, not merely equitable, right (to the position)
which is protected not only by statute, but also by the constitution, and
cannot be taken away from him either by revocation of the appointment, or by
removal, except for cause, and with previous notice and hearing."
Concededly, the appointing authority has a wide latitude of discretion in the
selection and appointment of qualified persons to vacant positions in the civil
service.21 However, the moment the discretionary power of appointment is
exercised and the appointee assumed the duties and functions of the
position, such appointment cannot anymore be revoked by the appointing
authority and appoint another in his stead, except for cause. Here, no iota of
evidence was ever established to justify the revocation of respondent's
appointment by demoting her. Respondent's security of tenure guaranteed
under the 1987 Constitution [Article IX-B, Section 2, par. (3)] should not be
placed at the mercy of abusive exercise of the appointing power. 22
Parenthetically, when the Court of Appeals reinstated respondent to her
legitimate post as Manager II in the Resource Management Division, it
merely restored her appointment to the said position to which her right to
security of tenure had already attached. To be sure, her position as Manager
II never became vacant since her demotion was void. In this jurisdiction,
"an appointment to a non-vacant position in the civil service is null and void
ab initio."23
We now delve on the backwages in favor of respondent.
The challenged Court of Appeals Decision ordered the reinstatement of
respondent without awarding backwages. This matter becomes controversial
because respondent assumed the lower position of Administrative Officer
during the pendency of her protest against petitioner Anino's appointment to
the contested position. Also, petitioner Anino retired from the service on
November 30, 1997.
In this respect, while petitioner Anino's appointment to the contested position
is void, as earlier discussed, he is nonetheless considered a de facto officer
during the period of his incumbency.24 A de facto officer is one who is in
possession of an office and who openly exercises its functions under color of
an appointment or election, even though such appointment or election may
be irregular.25 In Monroy vs. Court of Appeals,26 this Court ruled that a rightful
incumbent of a public office may recover from a de facto officer the salary
received by the latter during the time of his wrongful tenure, even though he
(the de facto officer) occupied the office in good faith and under color of title.
A de facto officer, not having a good title, takes the salaries at his risk and
must, therefore, account to the de jure officer for whatever salary he received
during the period of his wrongful tenure. In the later case of Civil Liberties
Union vs. Executive Secretary,27 this Court allowed a de facto officer to
receive emoluments for actual services rendered but only when there is no
de jure officer, thus:
"x x x in cases where there is no de jure officer, a de facto officer
who, in good faith, has had possession of the office and has
discharged the duties pertaining thereto, is legally entitled to the
emoluments of the office, and may in appropriate action recover the
salary, fees and other compensations attached to the office."
In fine, the rule is that where there is a de jure officer, a de facto officer,
during his wrongful incumbency, is not entitled to the emoluments attached to
the office, even if he occupied the office in good faith. This rule, however,
cannot be applied squarely on the present case in view of its peculiar
circumstances. Respondent had assumed under protest the position of
Administrative Officer sometime in the latter part of 1988, which position she
currently holds. Since then, she has been receiving the emoluments, salary
and other compensation attached to such office. While her assumption to
said lower position and her acceptance of the corresponding emoluments
cannot be considered as an abandonment of her claim to her rightful office
(Division Manager), she cannot recover full backwages for the period when
she was unlawfully deprived thereof. She is entitled only to backpay
differentials for the period starting from her assumption as Administrative
Officer up to the time of her actual reinstatement to her rightful position as
Division Manager. Such backpay differentials pertain to the difference
between the salary rates for the positions of Manager II and Administrative
Officer. The same must be paid by petitioner Anino corresponding from the
time he wrongfully assumed the contested position up to the time of his
retirement on November 30, 1997.1âwphi1.nêt
WHEREFORE, the petition is DENIED. The challenged Decision of the Court
of Appeals dated June 20, 1997 is AFFIRMED with MODIFICATION in the
sense that petitioner Ramon A. Anino is ordered to pay respondent Julieta
Monserate backpay differentials pertaining to the period from the time he
wrongfully assumed the contested position of Manager II up to his retirement
on November 30, 1997.
SO ORDERED.
Panganiban, and Carpio, JJ., concur.
Melo, J., On official leave.
Vitug, J., Acting Chairman.
Footnotes
1
Filed under Rule 45 of the 1997 Rules of Civil Procedure, as
amended.

2 "x x x
Entitled "Julieta Monserate vs. The General Manager, Philippine
Ports Authority and Ramon Anino."
"B. Relative Fitness
3
Annex "F," Court of Appeals (CA) records, p. 231.
Where the number of incumbents to be replaced exceed the number
4 of positions in the new staffing pattern, they shall be compared in
Annex "C," CA Rollo, p. 28. terms of relative fitness and the most qualified and competent shall
be preferred. In this respect, the following factors shall be
5
Annex "F," ibid., p. 35. considered:
6
Annex "K-1," ibid., p. 46. 1. Performance for the last two (2) years;
7
CSC MC No. 5, s. 1988 (Supplemental Guidelines on Placement of 2. Education and training;
Personnel in Reorganizing Agencies), Par. 3, provides:
3. Experience and outstanding accomplishment; and
"x x x
4. Physical characteristics and personality traits.
"3. All officials and employees, including those who have pending
administrative charges, shall be evaluated on the basis of standards "x x x"
for retention/termination enumerated under MC 10, s. 1986.
However, those with pending administrative cases shall not be 9
placed in or appointed to positions higher than the positions held by Annex "G," ibid., pp. 36-38.
them at the start of the reorganization, and the administrative cases
10
against them shall be pursued until decided. Persons with derogatory Annex "J," ibid., pp. 42-43.
information or prejudicial reports against them shall be given
reasonable opportunity to rebut the same or present their side." 11
CA record, p. 219.

8
CSC MC No. 10, s. 1986 (Guidelines on Placement of Personnel 12
Annex "H," CA Rollo pp. 39-40.
Affected by the 1986 Government Reorganization) Par. A, 1.2 and
Par. B, provide: 13
Annex "M," ibid., pp. 49-50.

"x x x 14
Annex "S," CA records, p. 264.

"A. 1. Permanent Employee 15

Annex "A," CA Rollo, pp. 22-24.

"x x x 16
Rollo. pp. 44-56.

"1.2 Those presently occupying position with the same or 17

SC Resolution dated July 13, 1998, Rollo, p. 132.
comparable titles and duties and responsibilities as those in the
approved staffing pattern; 18
Rollo, p. 23.
 vs.
19
Rollo pp. 51-52. PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS
DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as
20 Secretary of Education, Culture and Sports; FULGENCIO FACTORAN,
208 SCRA 240 (1992).
JR., as Secretary of Environment and Natural Resources; VICENTE V.
21
JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of
Mathay, Jr. vs. Court of Appeals, 320 SCRA 703 (1999) citing Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment;
Apurillo vs. Civil Service Commission, 227 SCRA 230 (1993). LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as
Secretary of National Defense; TEODORO F. BENIGNO, as Press
22
See Aquino vs. Civil Service Commission, supra. Secretary; JUANITO FERRER, as Secretary of Public Works and
Highways; ANTONIO ARRIZABAL, as Secretary of Science and
23
Morata vs. Court of Appeals, 11 SCRA 42 (1964), cited in Aquino Technology; JOSE CONCEPCION, as Secretary of Trade and Industry;
vs. Civil Service Commission, supra. JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A.
BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of
24
See Corpuz vs. Court of Appeals, 285 SCRA 23 (1998). Transportation and Communication; GUILLERMO CARAGUE, as
Commissioner of the Budget; and SOLITA MONSOD, as Head of the
25 National Economic Development Authority, respondents.
Dimaandal vs. Commission on Audit, 291 SCRA 322 (1998).

26 Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David

20 SCRA 620 (1967). for petitioners in 83896.
27
194 SCRA 317 (1991). Antonio P. Coronel for petitioners in 83815.

The Lawphil Project - Arellano Law Foundation  

FERNAN, C.J.:p

Republic of the Philippines These two (2) petitions were consolidated per resolution dated August 9,
SUPREME COURT 1988 1 and are being resolved jointly as both seek a declaration of the
Manila unconstitutionality of Executive Order No. 284 issued by President Corazon
C. Aquino on July 25, 1987. The pertinent provisions of the assailed
EN BANC Executive Order are:

  Sec. 1. Even if allowed by law or by the ordinary functions of

his position, a member of the Cabinet, undersecretary or
G.R. No. 83896 February 22, 1991 assistant secretary or other appointive officials of the
Executive Department may, in addition to his primary
CIVIL LIBERTIES UNION, petitioner, position, hold not more than two positions in the government
vs. and government corporations and receive the corresponding
THE EXECUTIVE SECRETARY, respondent. compensation therefor; Provided, that this limitation shall not
apply to ad hoc bodies or committees, or to boards, councils
or bodies of which the President is the Chairman.
G.R. No. 83815 February 22, 1991
Sec. 2. If a member of the cabinet, undersecretary or
ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. assistant secretary or other appointive official of the
REYES, petitioners,
 Executive Department holds more positions than what is
allowed in Section 1 hereof, they (sic) must relinquish the
excess position in favor of the subordinate official who is next
in rank, but in no case shall any official hold more than two
positions other than his primary position.
Sec. 3. In order to fully protect the interest of the government
in government-owned or controlled corporations, at least
one-third (1/3) of the members of the boards of such
corporation should either be a secretary, or undersecretary,
or assistant secretary.
Petitioners maintain that this Executive Order which, in effect, allows
members of the Cabinet, their undersecretaries and assistant secretaries to
hold other government offices or positions in addition to their primary
positions, albeit subject to the limitation therein imposed, runs counter to
Section 13, Article VII of the 1987 Constitution, 2 which provides as follows:
Sec. 13. The President, Vice-President, the Members of the
Cabinet, and their deputies or assistants shall not, unless
otherwise provided in this Constitution, hold any other office
or employment during their tenure. They shall not, during
said tenure, directly or indirectly practice any other
profession, participate in any business, or be financially
interested in any contract with, or in any franchise, or special
privilege granted by the Government or any subdivision,
agency, or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries. They
shall strictly avoid conflict of interest in the conduct of their
office.
It is alleged that the above-quoted Section 13, Article VII prohibits public
respondents, as members of the Cabinet, along with the other public officials
enumerated in the list attached to the petitions as Annex "C" in G.R. No.
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or
employment during their tenure. In addition to seeking a declaration of the
unconstitutionality of Executive Order No. 284, petitioner Anti-Graft League of
the Philippines further seeks in G.R. No. 83815 the issuance of the
extraordinary writs of prohibition and mandamus, as well as a temporary
restraining order directing public respondents therein to cease and desist
from holding, in addition to their primary positions, dual or multiple positions
other than those authorized by the 1987 Constitution and from receiving any
salaries, allowances, per diems and other forms of privileges and the like
appurtenant to their questioned positions, and compelling public respondents
to return, reimburse or refund any and all amounts or benefits that they may
have received from such positions.
Specifically, petitioner Anti-Graft League of the Philippines charges that
notwithstanding the aforequoted "absolute and self-executing" provision of
the 1987 Constitution, then Secretary of Justice Sedfrey Ordoñez, construing
Section 13, Article VII in relation to Section 7, par. (2), Article IX-B, rendered
on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet
members, their deputies (undersecretaries) and assistant secretaries may
hold other public office, including membership in the boards of government
corporations: (a) when directly provided for in the Constitution as in the case
of the Secretary of Justice who is made an ex-officio member of the Judicial
and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by
law; or (c) if allowed by the primary functions of their respective positions; and
that on the basis of this Opinion, the President of the Philippines, on July 25,
1987 or two (2) days before Congress convened on July 27, 1987:
promulgated Executive Order No. 284. 6
Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion
No. 73 and Executive Order No. 284 as they allegedly "lumped together"
Section 13, Article VII and the general provision in another article, Section 7,
par. (2), Article I-XB. This "strained linkage" between the two provisions, each
addressed to a distinct and separate group of public officers –– one, the
President and her official family, and the other, public servants in general ––
allegedly "abolished the clearly separate, higher, exclusive, and mandatory
constitutional rank assigned to the prohibition against multiple jobs for the
President, the Vice-President, the members of the Cabinet, and their deputies
and subalterns, who are the leaders of government expected to lead by
example." 7 Article IX-B, Section 7, par. (2) 8 provides:
Sec. 7. . . . . .
Unless otherwise allowed by law or by the primary functions
of his position, no appointive official shall hold any other
office or employment in the government or any subdivision,
agency or instrumentality thereof, including government-
owned or controlled corporations or their subsidiaries.
The Solicitor General counters that Department of Justice DOJ Opinion No.
73, series of 1987, as further elucidated and clarified by DOJ Opinion No.
129, series of 1987 9 and DOJ Opinion No. 155, series of 1988, 10 being the
first official construction and interpretation by the Secretary of Justice of
Section 13, Article VII and par. (2) of Section 7, Article I-XB of the
Constitution, involving the same subject of appointments or designations of
an appointive executive official to positions other than his primary position, is
"reasonably valid and constitutionally firm," and that Executive Order No. 284,
promulgated pursuant to DOJ Opinion No. 73, series of 1987 is consequently
constitutional. It is worth noting that DOJ Opinion No. 129, series of 1987 and
DOJ Opinion No. 155, series of 1988 construed the limitation imposed by
E.O. No. 284 as not applying to ex-officio positions or to positions which,
although not so designated as ex-officio are allowed by the primary functions
of the public official, but only to the holding of multiple positions which are not
related to or necessarily included in the position of the public official
concerned (disparate positions).
In sum, the constitutionality of Executive Order No. 284 is being challenged
by petitioners on the principal submission that it adds exceptions to Section
13, Article VII other than those provided in the Constitution. According to
petitioners, by virtue of the phrase "unless otherwise provided in this
Constitution," the only exceptions against holding any other office or
employment in Government are those provided in the Constitution, namely:
(1) The Vice-President may be appointed as a Member of the Cabinet under
Section 3, par. (2), Article VII thereof; and (2) the Secretary of Justice is an
ex-officio member of the Judicial and Bar Council by virtue of Section 8 (1),
Article VIII.
Petitioners further argue that the exception to the prohibition in Section 7, par.
(2), Article I-XB on the Civil Service Commission applies to officers and
employees of the Civil Service in general and that said exceptions do not
apply and cannot be extended to Section 13, Article VII which applies
specifically to the President, Vice-President, Members of the Cabinet and
their deputies or assistants.
There is no dispute that the prohibition against the President, Vice-President,
the members of the Cabinet and their deputies or assistants from holding dual
or multiple positions in the Government admits of certain exceptions. The
disagreement between petitioners and public respondents lies on the
constitutional basis of the exception. Petitioners insist that because of the
phrase "unless otherwise provided in this Constitution" used in Section 13 of
Article VII, the exception must be expressly provided in the Constitution, as in
the case of the Vice-President being allowed to become a Member of the
Cabinet under the second paragraph of Section 3, Article VII or the Secretary
of Justice being designated an ex-officio member of the Judicial and Bar
Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand,
maintain that the phrase "unless otherwise provided in the Constitution" in
Section 13, Article VII makes reference to Section 7, par. (2), Article I-XB
insofar as the appointive officials mentioned therein are concerned.
The threshold question therefore is: does the prohibition in Section 13, Article
VII of the 1987 Constitution insofar as Cabinet members, their deputies or
assistants are concerned admit of the broad exceptions made for appointive
officials in general under Section 7, par. (2), Article I-XB which, for easy
reference is quoted anew, thus: "Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other
office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporation
or their subsidiaries."
We rule in the negative.
A foolproof yardstick in constitutional construction is the intention underlying
the provision under consideration. Thus, it has been held that the Court in
construing a Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of
the times, and the condition and circumstances under which the Constitution
was framed. The object is to ascertain the reason which induced the framers
of the Constitution to enact the particular provision and the purpose sought to
be accomplished thereby, in order to construe the whole as to make the
words consonant to that reason and calculated to effect that purpose. 11
The practice of designating members of the Cabinet, their deputies and
assistants as members of the governing bodies or boards of various
government agencies and instrumentalities, including government-owned and
controlled corporations, became prevalent during the time legislative powers
in this country were exercised by former President Ferdinand E. Marcos
pursuant to his martial law authority. There was a proliferation of newly-
created agencies, instrumentalities and government-owned and controlled
corporations created by presidential decrees and other modes of presidential
issuances where Cabinet members, their deputies or assistants were
designated to head or sit as members of the board with the corresponding
salaries, emoluments, per diems, allowances and other perquisites of office.
Most of these instrumentalities have remained up to the present time.
This practice of holding multiple offices or positions in the government soon
led to abuses by unscrupulous public officials who took advantage of this
scheme for purposes of self-enrichment. In fact, the holding of multiple offices
in government was strongly denounced on the floor of the Batasang
Pambansa. 12 This condemnation came in reaction to the published report of
the Commission on Audit, entitled "1983 Summary Annual Audit Report on:
Government-Owned and Controlled Corporations, Self-Governing Boards and
Commissions" which carried as its Figure No. 4 a "Roaster of Membership in
Governing Boards of Government-Owned and Controlled Corporations as of
December 31, 1983."
Particularly odious and revolting to the people's sense of propriety and
morality in government service were the data contained therein that Roberto
V. Ongpin was a member of the governing boards of twenty-nine (29)
governmental agencies, instrumentalities and corporations; Imelda R. Marcos
of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco,
Jr. of fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen
each (14); Cesar C. Zalamea of thirteen (13); Ruben B. Ancheta and Jose A.
Roño of twelve (12) each; Manuel P. Alba, Gilberto O. Teodoro, and Edgardo
Tordesillas of eleven (11) each; and Lilia Bautista and Teodoro Q. Peña of
ten (10) each. 13
The blatant betrayal of public trust evolved into one of the serious causes of
discontent with the Marcos regime. It was therefore quite inevitable and in
consonance with the overwhelming sentiment of the people that the 1986
Constitutional Commission, convened as it was after the people successfully
unseated former President Marcos, should draft into its proposed Constitution
the provisions under consideration which are envisioned to remedy, if not
correct, the evils that flow from the holding of multiple governmental offices
and employment. In fact, as keenly observed by Mr. Justice Isagani A. Cruz
during the deliberations in these cases, one of the strongest selling points of
the 1987 Constitution during the campaign for its ratification was the
assurance given by its proponents that the scandalous practice of Cabinet
members holding multiple positions in the government and collecting
unconscionably excessive compensation therefrom would be discontinued.
But what is indeed significant is the fact that although Section 7, Article I-XB
already contains a blanket prohibition against the holding of multiple offices or
employment in the government subsuming both elective and appointive public
officials, the Constitutional Commission should see it fit to formulate another
provision, Sec. 13, Article VII, specifically prohibiting the President, Vice-
President, members of the Cabinet, their deputies and assistants from
holding any other office or employment during their tenure, unless otherwise
provided in the Constitution itself.
Evidently, from this move as well as in the different phraseologies of the
constitutional provisions in question, the intent of the framers of the
Constitution was to impose a stricter prohibition on the President and his
official family in so far as holding other offices or employment in the
government or elsewhere is concerned.
Moreover, such intent is underscored by a comparison of Section 13, Article
VII with other provisions of the Constitution on the disqualifications of certain
public officials or employees from holding other offices or employment. Under
Section 13, Article VI, "(N)o Senator or Member of the House of
Representatives may hold any other office or employment in the
Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed
forces in the active service shall, at any time, be appointed in any capacity to
a civilian position in the Government, including government-owned or
controlled corporations or any of their subsidiaries." Even Section 7 (2),
Article IX-B, relied upon by respondents provides "(U)nless otherwise allowed
by law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the Government."
It is quite notable that in all these provisions on disqualifications to hold other
office or employment, the prohibition pertains to an office or employment in
the government and government-owned or controlled corporations or their
subsidiaries. In striking contrast is the wording of Section 13, Article VII which
states that "(T)he President, Vice-President, the Members of the Cabinet, and
their deputies or assistants shall not, unless otherwise provided in this
Constitution, hold any other office or employment during their tenure." In the
latter provision, the disqualification is absolute, not being qualified by the
phrase "in the Government." The prohibition imposed on the President and
his official family is therefore all-embracing and covers both public and private
office or employment.
Going further into Section 13, Article VII, the second sentence provides:
"They shall not, during said tenure, directly or indirectly, practice any other
profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries." These
sweeping, all-embracing prohibitions imposed on the President and his official
family, which prohibitions are not similarly imposed on other public officials or
employees such as the Members of Congress, members of the civil service in
general and members of the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family as a class by itself
and to impose upon said class stricter prohibitions.
Such intent of the 1986 Constitutional Commission to be stricter with the
President and his official family was also succinctly articulated by
Commissioner Vicente Foz after Commissioner Regalado Maambong noted
during the floor deliberations and debate that there was no symmetry
between the Civil Service prohibitions, originally found in the General
Provisions and the anticipated report on the Executive Department.
Commissioner Foz Commented, "We actually have to be stricter with the
President and the members of the Cabinet because they exercise more
powers and, therefore, more cheeks and restraints on them are called for
because there is more possibility of abuse in their case." 14
Thus, while all other appointive officials in the civil service are allowed to hold
other office or employment in the government during their tenure when such
is allowed by law or by the primary functions of their positions, members of
the Cabinet, their deputies and assistants may do so only when expressly
authorized by the Constitution itself. In other words, Section 7, Article I-XB is
meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the
exception applicable only to the President, the Vice- President, Members of
the Cabinet, their deputies and assistants.
This being the case, the qualifying phrase "unless otherwise provided in this
Constitution" in Section 13, Article VII cannot possibly refer to the broad
exceptions provided under Section 7, Article I-XB of the 1987 Constitution. To
construe said qualifying phrase as respondents would have us do, would
render nugatory and meaningless the manifest intent and purpose of the
framers of the Constitution to impose a stricter prohibition on the President,
Vice-President, Members of the Cabinet, their deputies and assistants with
respect to holding other offices or employment in the government during their
tenure. Respondents' interpretation that Section 13 of Article VII admits of the
exceptions found in Section 7, par. (2) of Article IX-B would obliterate the
distinction so carefully set by the framers of the Constitution as to when the
high-ranking officials of the Executive Branch from the President to Assistant
Secretary, on the one hand, and the generality of civil servants from the rank
immediately below Assistant Secretary downwards, on the other, may hold
any other office or position in the government during their tenure.
Moreover, respondents' reading of the provisions in question would render
certain parts of the Constitution inoperative. This observation applies
particularly to the Vice-President who, under Section 13 of Article VII is
allowed to hold other office or employment when so authorized by the
Constitution, but who as an elective public official under Sec. 7, par. (1) of
Article I-XB is absolutely ineligible "for appointment or designation in any
capacity to any public office or position during his tenure." Surely, to say that
the phrase "unless otherwise provided in this Constitution" found in Section
13, Article VII has reference to Section 7, par. (1) of Article I-XB would render
meaningless the specific provisions of the Constitution authorizing the Vice-
President to become a member of the Cabinet, 15 and to act as President
without relinquishing the Vice-Presidency where the President shall not nave
been chosen or fails to qualify. 16 Such absurd consequence can be avoided
only by interpreting the two provisions under consideration as one, i.e.,
Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e.,
Section 13, Article VII as constituting the exception thereto. In the same
manner must Section 7, par. (2) of Article I-XB be construed vis-a-vis Section
13, Article VII.
It is a well-established rule in Constitutional construction that no one provision
of the Constitution is to be separated from all the others, to be considered
alone, but that all the provisions bearing upon a particular subject are to be
brought into view and to be so interpreted as to effectuate the great purposes
of the instrument. 17 Sections bearing on a particular subject should be
considered and interpreted together as to effectuate the whole purpose of the
Constitution 18 and one section is not to be allowed to defeat another, if by
any reasonable construction, the two can be made to stand together. 19
In other words, the court must harmonize them, if practicable, and must lean
in favor of a construction which will render every word operative, rather than
one which may make the words idle and nugatory. 20
Since the evident purpose of the framers of the 1987 Constitution is to
impose a stricter prohibition on the President, Vice-President, members of the
Cabinet, their deputies and assistants with respect to holding multiple offices
or employment in the government during their tenure, the exception to this
prohibition must be read with equal severity. On its face, the language of
Section 13, Article VII is prohibitory so that it must be understood as intended
to be a positive and unequivocal negation of the privilege of holding multiple
government offices or employment. Verily, wherever the language used in the
constitution is prohibitory, it is to be understood as intended to be a positive
and unequivocal negation. 21 The phrase "unless otherwise provided in this
Constitution" must be given a literal interpretation to refer only to those
particular instances cited in the Constitution itself, to wit: the Vice-President
being appointed as a member of the Cabinet under Section 3, par. (2), Article
VII; or acting as President in those instances provided under Section 7, pars.
(2) and (3), Article VII; and, the Secretary of Justice being ex-officio member
of the Judicial and Bar Council by virtue of Section 8 (1), Article VIII.
The prohibition against holding dual or multiple offices or employment under
Section 13, Article VII of the Constitution must not, however, be construed as
applying to posts occupied by the Executive officials specified therein without
additional compensation in an ex-officio capacity as provided by law and as
required 22 by the primary functions of said officials' office. The reason is that
these posts do no comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties
and functions on said officials. 23 To characterize these posts otherwise would
lead to absurd consequences, among which are: The President of the
Philippines cannot chair the National Security Council reorganized under
Executive Order No. 115 (December 24, 1986). Neither can the Vice-
President, the Executive Secretary, and the Secretaries of National Defense,
Justice, Labor and Employment and Local Government sit in this Council,
which would then have no reason to exist for lack of a chairperson and
members. The respective undersecretaries and assistant secretaries, would
also be prohibited.
The Secretary of Labor and Employment cannot chair the Board of Trustees
of the National Manpower and Youth Council (NMYC) or the Philippine
Overseas Employment Administration (POEA), both of which are attached to
his department for policy coordination and guidance. Neither can his
Undersecretaries and Assistant Secretaries chair these agencies.
The Secretaries of Finance and Budget cannot sit in the Monetary
Board. 24 Neither can their respective undersecretaries and assistant
secretaries. The Central Bank Governor would then be assisted by lower
ranking employees in providing policy direction in the areas of money,
banking and credit. 25
Indeed, the framers of our Constitution could not have intended such absurd
consequences. A Constitution, viewed as a continuously operative charter of
government, is not to be interpreted as demanding the impossible or the
impracticable; and unreasonable or absurd consequences, if possible, should
be avoided. 26
To reiterate, the prohibition under Section 13, Article VII is not to be
interpreted as covering positions held without additional compensation in ex-
officio capacities as provided by law and as required by the primary functions
of the concerned official's office. The term ex-officio means "from office; by
virtue of office." It refers to an "authority derived from official character
merely, not expressly conferred upon the individual character, but rather
annexed to the official position." Ex-officio likewise denotes an "act done in an
official character, or as a consequence of office, and without any other
appointment or authority than that conferred by the office." 27 An ex-officio
member of a board is one who is a member by virtue of his title to a certain
office, and without further warrant or appointment. 28 To illustrate, by express
provision of law, the Secretary of Transportation and Communications is the
ex-officio Chairman of the Board of the Philippine Ports Authority, 29 and the
Light Rail Transit Authority. 30
The Court had occasion to explain the meaning of an ex-officio position in
Rafael vs. Embroidery and Apparel Control and Inspection Board, 31 thus: "An
examination of section 2 of the questioned statute (R.A. 3137) reveals that for
the chairman and members of the Board to qualify they need only be
designated by the respective department heads. With the exception of the
representative from the private sector, they sit ex-officio. In order to be
designated they must already be holding positions in the offices mentioned in
the law. Thus, for instance, one who does not hold a previous appointment in
the Bureau of Customs, cannot, under the act, be designated a
representative from that office. The same is true with respect to the
representatives from the other offices. No new appointments are necessary.
This is as it should be, because the representatives so designated merely
perform duties in the Board in addition to those already performed under their
original appointments." 32
The term "primary" used to describe "functions" refers to the order of
importance and thus means chief or principal function. The term is not
restricted to the singular but may refer to the plural. 33 The additional duties
must not only be closely related to, but must be required by the official's
primary functions. Examples of designations to positions by virtue of one's
primary functions are the Secretaries of Finance and Budget sitting as
members of the Monetary Board, and the Secretary of Transportation and
Communications acting as Chairman of the Maritime Industry Authority 34 and
the Civil Aeronautics Board.
If the functions required to be performed are merely incidental, remotely
related, inconsistent, incompatible, or otherwise alien to the primary function
of a cabinet official, such additional functions would fall under the purview of
"any other office" prohibited by the Constitution. An example would be the
Press Undersecretary sitting as a member of the Board of the Philippine
Amusement and Gaming Corporation. The same rule applies to such
positions which confer on the cabinet official management functions and/or
monetary compensation, such as but not limited to chairmanships or
directorships in government-owned or controlled corporations and their
subsidiaries.
Mandating additional duties and functions to the President, Vice-President,
Cabinet Members, their deputies or assistants which are not inconsistent with
those already prescribed by their offices or appointments by virtue of their
special knowledge, expertise and skill in their respective executive offices is a
practice long-recognized in many jurisdictions. It is a practice justified by the
demands of efficiency, policy direction, continuity and coordination among the
different offices in the Executive Branch in the discharge of its multifarious
tasks of executing and implementing laws affecting national interest and
general welfare and delivering basic services to the people. It is consistent
with the power vested on the President and his alter egos, the Cabinet
members, to have control of all the executive departments, bureaus and
offices and to ensure that the laws are faithfully executed. 35 Without these
additional duties and functions being assigned to the President and his official
family to sit in the governing bodies or boards of governmental agencies or
instrumentalities in an ex-officio capacity as provided by law and as required
by their primary functions, they would be supervision, thereby deprived of the
means for control and resulting in an unwieldy and confused bureaucracy.
It bears repeating though that in order that such additional duties or functions
may not transgress the prohibition embodied in Section 13, Article VII of the
1987 Constitution, such additional duties or functions must be required by the
primary functions of the official concerned, who is to perform the same in an
ex-officio capacity as provided by law, without receiving any additional
compensation therefor.
The ex-officio position being actually and in legal contemplation part of the
principal office, it follows that the official concerned has no right to receive
additional compensation for his services in the said position. The reason is
that these services are already paid for and covered by the compensation
attached to his principal office. It should be obvious that if, say, the Secretary
of Finance attends a meeting of the Monetary Board as an ex-officio member
thereof, he is actually and in legal contemplation performing the primary
function of his principal office in defining policy in monetary and banking
matters, which come under the jurisdiction of his department. For such
attendance, therefore, he is not entitled to collect any extra compensation,
whether it be in the form of a per them or an honorarium or an allowance, or
some other such euphemism. By whatever name it is designated, such
additional compensation is prohibited by the Constitution.
It is interesting to note that during the floor deliberations on the proposal of
Commissioner Christian Monsod to add to Section 7, par. (2), Article IX-B,
originally found as Section 3 of the General Provisions, the exception "unless
required by the functions of his position," 36 express reference to certain high-
ranking appointive public officials like members of the Cabinet were made. 37
Responding to a query of Commissioner Blas Ople, Commissioner Monsod
pointed out that there are instances when although not required by current
law, membership of certain high-ranking executive officials in other offices
and corporations is necessary by reason of said officials' primary functions.
The example given by Commissioner Monsod was the Minister of Trade and
Industry. 38
While this exchange between Commissioners Monsod and Ople may be used
as authority for saying that additional functions and duties flowing from the
primary functions of the official may be imposed upon him without offending
the constitutional prohibition under consideration, it cannot, however, be
taken as authority for saying that this exception is by virtue of Section 7, par.
(2) of Article I-XB. This colloquy between the two Commissioners took place
in the plenary session of September 27, 1986. Under consideration then was
Section 3 of Committee Resolution No. 531 which was the proposed article
on General Provisions. 39 At that time, the article on the Civil Service
Commission had been approved on third reading on July 22, 1986, 40 while
the article on the Executive Department, containing the more specific
prohibition in Section 13, had also been earlier approved on third reading on
August 26, 1986. 41 It was only after the draft Constitution had undergone
reformatting and "styling" by the Committee on Style that said Section 3 of the
General Provisions became Section 7, par. (2) of Article IX-B and reworded
"Unless otherwise allowed by law or by the primary functions of his
position. . . ."
What was clearly being discussed then were general principles which would
serve as constitutional guidelines in the absence of specific constitutional
provisions on the matter. What was primarily at issue and approved on that
occasion was the adoption of the qualified and delimited phrase "primary
functions" as the basis of an exception to the general rule covering all
appointive public officials. Had the Constitutional Commission intended to
dilute the specific prohibition in said Section 13 of Article VII, it could have re-
worded said Section 13 to conform to the wider exceptions provided in then
Section 3 of the proposed general Provisions, later placed as Section 7, par.
(2) of Article IX-B on the Civil Service Commission.
That this exception would in the final analysis apply also to the President and
his official family is by reason of the legal principles governing additional
functions and duties of public officials rather than by virtue of Section 7, par.
2, Article IX-B At any rate, we have made it clear that only the additional
functions and duties "required," as opposed to "allowed," by the primary
functions may be considered as not constituting "any other office."
While it is permissible in this jurisdiction to consult the debates and
proceedings of the constitutional convention in order to arrive at the reason
and purpose of the resulting Constitution, resort thereto may be had only
when other guides fail 42 as said proceedings are powerless to vary the terms
of the Constitution when the meaning is clear. Debates in the constitutional
convention "are of value as showing the views of the individual members, and
as indicating the reasons for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of the mass of our
fellow citizens whose votes at the polls gave that instrument the force of
fundamental law. We think it safer to construe the constitution from what
appears upon its face." 43 The proper interpretation therefore depends more
on how it was understood by the people adopting it than in the framers's
understanding thereof. 44
It being clear, as it was in fact one of its best selling points, that the 1987
Constitution seeks to prohibit the President, Vice-President, members of the
Cabinet, their deputies or assistants from holding during their tenure multiple
offices or employment in the government, except in those cases specified in
the Constitution itself and as above clarified with respect to posts held without
additional compensation in an ex-officio capacity as provided by law and as
required by the primary functions of their office, the citation of Cabinet
members (then called Ministers) as examples during the debate and
deliberation on the general rule laid down for all appointive officials should be
considered as mere personal opinions which cannot override the
constitution's manifest intent and the people' understanding thereof.
In the light of the construction given to Section 13, Article VII in relation to
Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No.
284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number
of positions that Cabinet members, undersecretaries or assistant secretaries
may hold in addition to their primary position to not more than two (2)
positions in the government and government corporations, Executive Order
No. 284 actually allows them to hold multiple offices or employment in direct
contravention of the express mandate of Section 13, Article VII of the 1987
Constitution prohibiting them from doing so, unless otherwise provided in the
1987 Constitution itself.
The Court is alerted by respondents to the impractical consequences that will from all liability to pay any one for such services. 47 Any per diem, allowances
result from a strict application of the prohibition mandated under Section 13, or other emoluments received by the respondents by virtue of actual services
Article VII on the operations of the Government, considering that Cabinet rendered in the questioned positions may therefore be retained by them.
members would be stripped of their offices held in an ex-officio capacity, by
reason of their primary positions or by virtue of legislation. As earlier clarified WHEREFORE, subject to the qualification above-stated, the petitions are
in this decision, ex-officio posts held by the executive official concerned GRANTED. Executive Order No. 284 is hereby declared null and void and is
without additional compensation as provided by law and as required by the accordingly set aside.
primary functions of his office do not fall under the definition of "any other
office" within the contemplation of the constitutional prohibition. With respect SO ORDERED.
to other offices or employment held by virtue of legislation, including
chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared impractical Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco,
consequences are more apparent than real. Being head of an executive Padilla, Bidin, Medialdea, Regalado and Davide, Jr., JJ., concur.
department is no mean job. It is more than a full-time job, requiring full
attention, specialized knowledge, skills and expertise. If maximum benefits Sarmiento and Griño-Aquino, JJ., took no part.
are to be derived from a department head's ability and expertise, he should
be allowed to attend to his duties and responsibilities without the distraction of  
other governmental offices or employment. He should be precluded from
dissipating his efforts, attention and energy among too many positions of Footnotes
responsibility, which may result in haphazardness and inefficiency. Surely the
advantages to be derived from this concentration of attention, knowledge and
1 P. 71, Rollo in G.R. No. 83815 and p. 28, Rollo in G.R. No.
expertise, particularly at this stage of our national and economic
83896.
development, far outweigh the benefits, if any, that may be gained from a
department head spreading himself too thin and taking in more than what he
can handle. 2 Emphasis supplied.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby
orders respondents Secretary of Environment and Natural Resources
Fulgencio Factoran, Jr., Secretary of Local Government 45 Luis Santos,
Secretary of National Defense Fidel V. Ramos, Secretary of Health Alfredo
R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately
relinquish their other offices or employment, as herein defined, in the
government, including government-owned or controlled corporations and their
subsidiaries. With respect to the other named respondents, the petitions have
become moot and academic as they are no longer occupying the positions
complained of.
During their tenure in the questioned positions, respondents may be
considered de facto officers and as such entitled to emoluments for actual
services rendered. 46 It has been held that "in cases where there is no de
jure, officer, a de facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to
the emoluments of the office, and may in an appropriate action recover the
salary, fees and other compensations attached to the office. This doctrine is,
undoubtedly, supported on equitable grounds since it seems unjust that the
public should benefit by the services of an officer de facto and then be freed
3 pp. 29-30, Rollo.
4 pp. 10-21, Rollo.
5 Annex "A", Petition, G.R. No. 83815, pp. 21-24, Rollo.
6 Thereby, petitioner alleges, eliciting adverse published
commentaries from CONCOM Commissioners Fr. Joaquin G.
Bernas, S. J. and Regalado E. Maambong, Congressman
Rodolfo Albano of Isabela, and retired Supreme Court
Justice Felix Q. Antonio, Annexes "D", "E" and "F", Petition,
G.R. No. 83815, pp. 40-64, Rollo. CONCOM Vice-President
Ambrosio B. Padilla, in a published article cited in the
annexes, also commented on EO 284.
7 p. 11, Rollo in G.R. No. 83815.
8 Emphasis supplied.
9 Annex "I", Comment, G.R. No. 83896, pp. 62-67, Rollo.
10 Annex "2", Ibid., pp. 68-71, Rollo. 25 Sec. 20, Art. XII, 1987 Constitution.

11 Maxwell vs. Dow, 176 U.S. 581, 20 Sup. Ct. 448, 44 L.
Ed. 597.
12 R.B. No. 95, Monday, March 11, 1985, Record of the
Batasan, Volume IV, pp. 835-836.
26 Hirabayashi vs. United States, 320 U.S. 81, 87 L. Ed.
1774, 63 S. Ct. 1375; Opp Cotton Mills, Inc. vs. Administrator
of Wage and Hour Div., 312 U.S. 126, 85 L. Ed. 624, 61 S.
Ct. 524; Gage vs. Jordan, 23 Cal 2d 794, 174 P 2d, 287 cited
in 16 Am Jur 2d, pp. 100, 464.

13 pp. 11-14. 27 Black's Law Dictionary, p. 516; 15A Words and Phrases,
p. 392.
14 Record of the 1986 Constitutional Commission, Vol. 1, p.
553. 28 15A Words and Phrases, p. 392.

15 Sec. 3, Ibid. 29 Sec. 7, E.O. 778.

16 Sec. 7, Article VII. 30 Sec. 1, E.O. 210.

17 Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 31 21 SCRA 336 (1967).
51 L Ed 345, 27 S Ct 236; Wallace vs. Payne, 197 Cal 539,
241 P. 879. 32 Emphasis supplied.

18 Grantz vs. Grauman (Ky) 320 SW 2d 364; Runyon vs.
Smith, 308 Ky 73, 212 SW 2d 521.
19 People vs. Wright, 6 Col. 92.
20 Thomas M. Colley, A Treatise on the Constitutional
Limitations, Vol. I, p. 128, citing Attorney-General vs. Detroit
and Erin Plank Road Co., 2 Mich. 114; People vs. Burns, 5
Mich. 114 ; District Township vs. Dubuque, 7 Iowa 262.
21 Varney vs. Justice, 86 Ky 596; 6 S.W. 457; Hunt vs. State,
22 Tex. App. 396, 3 S.W. 233.
22 As opposed to the term "allowed" used in Section 7, par.
(2), Article IX-B of the Constitution, which is permissive.
"Required" suggests an imposition, and therefore, obligatory
in nature.
23 Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater
Greenville Sewer District, 173 A.L.R. 407.
33 33A Words and Phrases, p. 210, citing Collector of
Revenue vs. Louisiana Ready Mix Co., La. App., 197 S. 2d
141, 145.
34 Sec. 7, P.D. No. 474.
35 Section 17, Article VII.
36 The phrase that appears in the Constitution is not "Unless
required by the primary functions" but "Unless otherwise
allowed by law or by the primary functions . . ."
37 Record of the 1986 Constitutional Commission, Vol. V, pp.
165-166.
38 Emphasis supplied, Ibid., p. 165.
39 Ibid., Vol. V., pp. 80-81.
40 Ibid., Vol. II, p, 94.

24 Executive Order No. 16, May 9, 1986, 82 O.G. 2117. 41 Ibid., Vol. III, p. 710.
 42 16 Corpus Juris Secundum, 2. 31, p. 105.
43 Commonwealth vs. Ralph, 111 Pa. 365, 3 Atl 220.
44 Household Finance Corporation vs. Shaffner, 203, S.W.
2d 734. 356 Mo. 808.
45 Now Department of Interior and Local Governments.
46 Castillo vs. Arrieta, G.R. No. L-31444, November 13,
1974, 61 SCRA 55.
47 Patterson vs. Benson, 112 Pac. 801, 32 L.R.A. (NS) 949.
The Lawphil Project - Arellano Law Foundation
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
 
G.R. No. 90762 May 20, 1991
LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner,
vs.
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as
Chief Executive of the Province of Leyte and Head of SANGGUNIANG
PANLALAWIGAN and Leyte Provincial Treasurer FLORENCIO LUNA,
respondents.
Zozimo G. Alegre for petitioner.
The Provincial Attorney for respondents.
RESOLUTION
 
GUTIERREZ, JR., J.:p
This is a motion for reconsideration of the resolution of the Court dated
August 28, 1990 which initially denied the petition for certiorari and
mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In
the August 28 resolution, the Court stated that Mr. Menzon cannot
successfully assert the right to be recognized as Acting Vice-Governor and,
therefore, his designation was invalid. In this motion, the primary issue is the
right to emoluments while actually discharging the duties of the office.
The facts of the case are as follows: On February 16, 1988, by virtue of the
fact that no Governor had been proclaimed in the province of Leyte, the
Secretary of Local Government Luis Santos designated the Vice-Governor,
Leopoldo E. Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the
Sangguniang Panlalawigan was also designated by Secretary Luis Santos to
act as the Vice-Governor for the province of Leyte.
The petitioner took his oath of office before Senator Alberto Romulo on March
29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired
from the Undersecretary of the Department of Local Government, Jacinto T.
Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the
Vice-Governor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr.
stated that since B.P. 337 has no provision relating to succession in the
Office of the Vice-Governor in case of a temporary vacancy, the appointment
of the petitioner as the temporary Vice- Governor is not necessary since the
Vice-Governor who is temporarily performing the functions of the Governor,
could concurrently assume the functions of both offices.
As a result of the foregoing communications between Tente U. Quintero and
Jacinto T. Rubillar, Jr., the Sangguniang Panlalawigan, in a special session
held on July 7, 1989, issued Resolution No. 505 where it held invalid the
appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent
portion of the resolution reads:
WHEREAS, the circumstances obtaining at present in the
Office of the Vice-Governor is that there is no permanent
(sic) nor a vacancy in said office. The Honorable Leopoldo E.
Petilla assumed the Office of the Vice-Governor after he took
his oath of office to said position.
 WHEREAS, it is the duty of the members of the Board not
only to take cognizance of the aforesaid official
communication of the Undersecretary, Jacinto T. Rubillar, Jr.,
but also to uphold the law.
WHEREAS, on motion of the Honorable Macario R. Esmas,
Jr., duly seconded by the Honorable Rogelio L. Granados
and the Honorable Renato M. Rances.
RESOLVED, as it is hereby resolved not to recognize
Honorable Aurelio D. Menzon as Acting Vice-Governor of
Leyte. (Rollo, p. 27)
The petitioner, on July 10, 1989, through the acting LDP Regional Counsel,
Atty. Zosimo Alegre, sought clarification from Undersecretary Jacinto T.
Rubillar, Jr. regarding the June 22, 1989 opinion.
On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained
his opinion. The pertinent portion of the letter reads:
This has reference to your letter dated July 10, 1989,
requesting for clarification of our letter to Provincial
Administrator Tente U. Quintero dated June 22, 1989, which
states in substance, that "there is no succession provided for
in case of temporary vacancy in the office of the vice-
governor and that the designation of a temporary vice-
governor is not necessary.
We hold the view that the designation extended by the
Secretary of Local Government in favor of one of the
Sangguniang Panlalawigan Members of Leyte to temporarily
discharge the powers and duties of the vice-governor during
the pendency of the electoral controversy in the Office of the
Governor, does not contradict the stand we have on the
matter. The fact that the Sangguniang Panlalawigan member
was temporarily designated to perform the functions of the
vice-governor could not be considered that the Sangguniang
member succeeds to the office of the latter, for it is basic that
designation is merely an imposition of additional duties to be
performed by the designee in addition to the official functions
attached to his office. Furthermore, the necessity of
designating an official to temporarily perform the functions of
a particular public office, would depend on the discretion of
the appointing authority and the prevailing circumstances in a
given area and by taking into consideration the best interest
of public service.
On the basis of the foregoing and considering that the law is
silent in case of temporary vacancy, in the Office of the Vice-
Governor, it is our view that the peculiar situation in the
Province of Leyte, where the electoral controversy in the
Office of the Governor has not yet been settled, calls for the
designation of the Sangguniang Member to act as vice-
governor temporarily. (Rollo, p. 31)
In view, of the clarificatory letter of Undersecretary Rubillar, the Regional
Director of the Department of Local Government, Region 8, Resurreccion
Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor
of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of
the Sangguniang Panlalawigan be modified accordingly. The letter states:
In view thereof, please correct previous actions made by your
office and those of the Sangguniang Panlalawigan which
may have tended to discredit the validity of Atty. Aurelio
Menzon's designation as acting vice-governor, including the
payment of his salary as Acting Vice-Governor, if he was
deprived of such. (Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another letter to Acting-
Governor Petilla, reiterating his earlier request.
Despite these several letters of request, the Acting Governor and the
Sangguniang Panlalawigan, refused to correct Resolution No. 505 and
correspondingly to pay the petitioner the emoluments attached to the Office of
Vice-Governor.
Thus, on November 12, 1989, the petitioner filed before this Court a petition
for certiorari and mandamus. The petition sought the nullification of
Resolution No. 505 and for the payment of his salary for his services as the
acting Vice-Governor of Leyte.
In the meantime, however, the issue on the governorship of Leyte was settled
and Adelina Larrazabal was proclaimed the Governor of the province of
Leyte.
During the pendency of the petition, more particularly on May 16, 1990, the
provincial treasurer of Leyte, Florencio Luna allowed the payment to the
petitioner of his salary as acting Vice-Governor of Leyte in the amount of
P17,710.00, for the actual services rendered by the petitioner as acting Vice-
Governor.
On August 28, 1990, this Court dismissed the petition filed by Aurelio D.
Menzon.
On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above
resolution requested Governor Larrazabal to direct the petitioner to pay back
to the province of Leyte all the emoluments and compensation which he
received while acting as the Vice-Governor of Leyte.
On September 21, 1990, the petitioner filed a motion for reconsideration of
our resolution. The motion prayed that this Court uphold the petitioner's right
to receive the salary and emoluments attached to the office of the Vice-
Governor while he was acting as such.
The petitioner interposes the following reason for the allowance of the motion
for reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE
EMOLUMENTS FOR HIS SERVICES RENDERED AS
DESIGNATED ACTING VICE-GOVERNOR UNDER THE
PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE AND
EQUITY.
The controversy basically revolves around two issues: 1) Whether or not
there was a vacancy?; and 2) Whether or not the Secretary of Local
Government has the authority to make temporary appointments?
The respondents argue that there exists no vacancy in the Office of the Vice-
Governor which requires the appointment of the petitioner. They further allege
that if indeed there was a need to appoint an acting Vice-Governor, the power
to appoint is net vested in the Secretary of Local Government. Absent any
provision in the Local Government Code on the mode of succession in case
of a temporary vacancy in the Office of the Vice-Governor, they claim that this
constitutes an internal problem of the Sangguniang Panlalawigan and was
thus for it solely to resolve.
The arguments are of doubtful validity.
The law on Public Officers is clear on the matter. There is no vacancy
whenever the office is occupied by a legally qualified incumbent. A sensu
contrario, there is a vacancy when there is no person lawfully authorized to
assume and exercise at present the duties of the office. (see Stocking v.
State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices
and Officers, at p. 61)
Applying the definition of vacancy to this case, it can be readily seen that the
office of the Vice-Governor was left vacant when the duly elected Vice-
Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the
law, the office to which he was elected was left barren of a legally qualified
person to exercise the duties of the office of the Vice-Governor.
There is no satisfactory showing that Leopoldo Petilla, notwithstanding his
succession to the Office of the Governor, continued to simultaneously
exercise the duties of the Vice-Governor. The nature of the duties of a
Provincial Governor call for a full-time occupant to discharge them. More so
when the vacancy is for an extended period. Precisely, it was Petilla's
automatic assumption to the acting Governorship that resulted in the vacancy
in the office of the Vice-Governor. The fact that the Secretary of Local
Government was prompted to appoint the petitioner shows the need to fill up
the position during the period it was vacant. The Department Secretary had
the discretion to ascertain whether or not the Provincial Governor should
devote all his time to that particular office. Moreover, it is doubtful if the
Provincial Board, unilaterally acting, may revoke an appointment made by a
higher authority.
Disposing the issue of vacancy, we come to the second issue of whether or
not the Secretary of Local Government had the authority to designate the
petitioner.
We hold in the affirmative.
The Local Government Code is silent on the mode of succession in the event
of a temporary vacancy in the Office of the Vice-Governor. However, the
silence of the law must not be understood to convey that a remedy in law is
wanting.
The circumstances of the case reveal that there is indeed a necessity for the
appointment of an acting Vice-Governor. For about two years after the
governatorial elections, there had been no de jure permanent Governor for
the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet
been proclaimed due to a pending election case before the Commission on
Elections.
The two-year interregnum which would result from the respondents' view of
the law is disfavored as it would cause disruptions and delays in the delivery
of basic services to the people and in the proper management of the affairs of
the local government of Leyte. Definitely, it is incomprehensible that to leave
the situation without affording any remedy was ever intended by the Local
Government Code.
Under the circumstances of this case and considering the silence of the Local
Government Code, the Court rules that, in order to obviate the dilemma
resulting from an interregnum created by the vacancy, the President, acting
through her alter ego, the Secretary of Local Government, may remedy the
situation. We declare valid the temporary appointment extended to the
petitioner to act as the Vice-Governor. The exigencies of public service
demanded nothing less than the immediate appointment of an acting Vice-
Governor.
The records show that it was primarily for this contingency that
Undersecretary Jacinto Rubillar corrected and reconsidered his previous
position and acknowledged the need for an acting Vice-Governor.
It may be noted that under Commonwealth Act No. 588 and the Revised
Administrative Code of 1987, the President is empowered to make temporary
appointments in certain public offices, in case of any vacancy that may occur.
Albeit both laws deal only with the filling of vacancies in appointive positions.
However, in the absence of any contrary provision in the Local Government
Code and in the best interest of public service, we see no cogent reason why
the procedure thus outlined by the two laws may not be similarly applied in
the present case. The respondents contend that the provincial board is the
correct appointing power. This argument has no merit. As between the
President who has supervision over local governments as provided by law
and the members of the board who are junior to the vice-governor, we have
no problem ruling in favor of the President, until the law provides otherwise.
A vacancy creates an anomalous situation and finds no approbation under
the law for it deprives the constituents of their right of representation and
governance in their own local government.
In a republican form of government, the majority rules through their chosen
few, and if one of them is incapacitated or absent, etc., the management of
governmental affairs to that extent, may be hampered. Necessarily, there will
be a consequent delay in the delivery of basic services to the people of Leyte
if the Governor or the Vice-Governor is missing.
Whether or not the absence of a Vice-Governor would main or prejudice the
province of Leyte, is for higher officials to decide or, in proper cases, for the
judiciary to adjudicate. As shown in this case where for about two years there
was only an acting Governor steering the leadership of the province of Leyte,
the urgency of filling the vacancy in the Office of the Vice-Governor to free the
hands of the acting Governor to handle provincial problems and to serve as
the buffer in case something might happen to the acting Governor becomes
unquestionable. We do not have to dwell ourselves into the fact that nothing
happened to acting Governor Petilla during the two-year period. The
contingency of having simultaneous vacancies in both offices cannot just be
set aside. It was best for Leyte to have a full-time Governor and an acting
Vice-Governor. Service to the public is the primary concern of those in the
government. It is a continuous duty unbridled by any political considerations.
The appointment of the petitioner, moreover, is in full accord with the intent
behind the Local Government Code. There is no question that Section 49 in
connection with Section 52 of the Local Government Code shows clearly the
intent to provide for continuity in the performance of the duties of the Vice-
Governor.
The Local Government Code provides for the mode of succession in case of
a permanent vacancy, viz:
Section 49:
In case a permanent vacancy arises when a Vice-Governor
assumes the Office of the Governor, . . . refuses to assume
office, fails to qualify, dies, is removed from office, voluntary
resigns or is otherwise permanently incapacitated to
discharge the functions of his office the sangguniang
panlalawigan . . . member who obtained the highest number
of votes in the election immediately preceding, . . . shall
assume the office for the unexpired term of the Vice-
Governor. . . .
By virtue of the surroundings circumstance of this case, the mode of
succession provided for permanent vacancies may likewise be observed in
case of a temporary vacancy in the same office. In this case, there was a
need to fill the vacancy. The petitioner is himself the member of the
Sangguniang Panlalawigan who obtained the highest number of votes. The
Department Secretary acted correctly in extending the temporary
appointment.
In view of the foregoing, the petitioner's right to be paid the salary attached to
the Office of the Vice Governor is indubitable. The compensation, however, to
be remunerated to the petitioner, following the example in Commonwealth Act
No. 588 and the Revised Administrative Code, and pursuant to the
proscription against double compensation must only be such additional
compensation as, with his existing salary, shall not exceed the salary
authorized by law for the Office of the Vice-Governor.
And finally, even granting that the President, acting through the Secretary of
Local Government, possesses no power to appoint the petitioner, at the very
least, the petitioner is a de facto officer entitled to compensation.
There is no denying that the petitioner assumed the Office of the Vice-
Governor under color of a known appointment. As revealed by the records,
the petitioner was appointed by no less than the alter ego of the President,
the Secretary of Local Government, after which he took his oath of office
before Senator Alberto Romulo in the Office of Department of Local
Government Regional Director Res Salvatierra.

Concededly, the appointment has the color of validity. The respondents

themselves acknowledged the validity of the petitioner's appointment and
dealt with him as such. It was only when the controversial Resolution No. 505
was passed by the same persons who recognized him as the acting Vice-
Governor that the validity of the appointment of the petitioner was made an
issue and the recognition withdrawn.

The petitioner, for a long period of time, exercised the duties attached to the
Office of the Vice-Governor. He was acclaimed as such by the people of
Leyte. Upon the principle of public policy on which the de facto doctrine is
based and basic considerations of justice, it would be highly iniquitous to now
deny him the salary due him for the services he actually rendered as the
acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61
SCRA 55 [1974])

WHEREFORE, the COURT hereby GRANTS the motion for reconsideration.

The additional compensation which the petitioner has received, in the amount
exceeding the salary authorized by law for the position of Senior Board
Member, shall be considered as payment for the actual services rendered as
acting Vice-Governor and may be retained by him.

SO ORDERED.

Fernan C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco,

Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide,
Jr., JJ., concur.

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