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Puboff Cases - June 15 and 17

Puboff Cases - June 15 and 17

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Republic of the Philippines 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. ² 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])

2. ID.; ID.; ID.; REORGANIZATION, VALID WHEN PURSUED IN GOOD FAITH; CASE AT BAR. ² 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 REEMPLOYED IN A REORGANIZED OFFICE; CASE AT BAR. ² 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 InterAgency 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).

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: ³In 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. ³Organic 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 ³illegal 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: ³Pursuant 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 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.:

³The 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: ³WHEREFORE, 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. ³The preliminary injunction issued on May 13, 1996 is hereby made permanent. ³No pronouncement as to costs. ³It 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 ³a 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 ³an undue exercise of legislative power.´ To this

end, respondent quoted heavily the lower court¶s rationale on this matter, to wit: ³With 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: ³Section 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: ³The President shall have control of all executive departments, bureaus and offices. He shall ensure that the laws be faithfully executed.´ By definition, control is ³the 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, ³without 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, ³performed 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) ³evidently shows that the President is authorized to effect organizational changes including the creation of offices in the department or agency concerned´: ³Section 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 ³Organizational Changes´ and Section 73 (General Provisions) thereof entitled ³Implementation of Reorganization.´ Likewise, R.A. 8250 (G.A.A. for FY 1997) has Section 76 (General Provisions) entitled

³Organizational Changes´ and Section 77 (General Provisions) entitled ³ 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: ³Section 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 ³all 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: ³1. 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: ³xxx ³b) 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;

³c) Transfer functions, appropriations, equipment, properties, records and personnel from one department, bureau, office, agency or instrumentality to another; ³d) Create, classify, combine, split, and abolish positions; ³e) Standardize salaries, materials, and equipment; ³f) 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) ³g) 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 ³designation´ 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 ³in the interest of the service´ and ³for 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, ³tapping 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: ³To 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 DOTCCAR 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 ³Roberto 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., ³The 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. 142801802, July 10, 2001. De Leon and De Leon, Jr., ³Administrative 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 ³the Establishment of Regional Offices in the Cordillera Administrative Region.´ Mondano vs. Silvosa, 97 Phil. 143 [1955]. Cruz, Isagani, ³Philippine Political Law, 1998 Ed., p.212.´ Ibid., p. 213.

67 Phil. 451 [1939]. 280 SCRA 713 [1997]. Larin vs. Executive Secretary, 280 SCRA 713 [1997]. Section 3, Article XVIII of the Constitution. 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 FIRST DIVISION

ENGINEER CLARO J. PRECLARO, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

KAPUNAN, J.: On 14 June 1990, petitioner was charged before the Sandiganbayan with a violation of Sec. 3(b) of R.A. No. 3019 as amended, otherwise known as the Anti-Graft and Corrupt Practices Act. The information against him read as follows: 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 ² said offense having been committed in relation to the performance of his official duties. CONTRARY TO LAW. 1 On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the charges against him. On 30 June 1993, after trial on the merits, the Second Division of the Sandiganbayan rendered judgment finding petitioner guilty beyond reasonable doubt. The dispositive portion reads as follows:

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 4 the construction period unless sooner terminated. Petitioner was to be paid a monthly salary drawn from counter-part funds duly financed by foreignassisted 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 T7 shirt and pants (p. 5, TSN, 29 Oct. 1990). 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 9 evidenced by the contract of services 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 10 take an oath of office. 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 11 which have been reclassified into Career Service and Non-Career Service 12 by PD 807 providing for the organization of the Civil Service Commission 13 and by the Administrative Code of 1987. Non-career service in particular is characterized by ² (1) entrance on bases other than those of the usual test of merit and fitness utilized for the career service; and (2) tenure which is limited to a period specified by law, or which is coterminous with that of the appointing authority or subject to his pleasure, or which is limited to the duration of a particular project for which purpose employment was made. The Non-Career Service shall include: (1) Elective officials and their personal or confidential staff; (2) Secretaries and other officials of Cabinet rank who hold their positions at the pleasure of the President and their personal or confidential staff(s); (3) Chairman and members of commissions and boards with fixed terms of office and their personal or confidential staff; (4) Contractual personnel or those whose employment in the government is in accordance with a special contract to undertake a specific work or job, requiring special or technical skills not available in the employing agency, to be accomplished within a specific period, which in no case shall exceed one year, and performs or accomplishes the specific work or job, under his own responsibility with a minimum of direction and supervision from the hiring agency; and (5) Emergency and seasonal personnel. (Emphasis ours.) 14

From the foregoing classification, it is quite evident that petitioner falls under the non-career service category (formerly termed the unclassified or exemption service) of the Civil Service and thus is a public officer as defined by Sec. 2(b) of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019). The fact that petitioner is not required to record his working hours by means of a bundy clock or did not take an oath of office became unessential considerations in view of the above-mentioned provision of law clearly including petitioner within the definition of a public officer. Similarly, petitioner's averment that he could not be prosecuted under the Anti-Graft & Corrupt Practices Act because his intervention "was not required by law but in the performance of a contract of services entered into by him as 15 a private individual contractor," is erroneous. As discussed above, petitioner falls within the definition of a public officer and as such, his duties delineated in Annex "B" of the contract of services 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 20 produces conviction in an unprejudiced mind." We have extensively reviewed the records of this case and we find no reason to overturn the findings of the Sandiganbayan.

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 P460,000.00 and he said take of the butal and get two Hundred Thousand Pesos. JUSTICE BALAJADIA: What is the translation now? WITNESS: A And he said disregard the excess and I will just get the P200,000.00. (Emphasis ours.) 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 Who is your boss? A Santa Maria Sr. Q What was the reaction of your boss when you relayed the message to Mr. Preclaro?

A The next day he told me to ask Dave where and when to pick up the money so the next day I asked Dave "Where do you intend to get the money, the Boss wanted to know." Q What was the answer of Dave? A And he told me, Wendy's Restaurant at 3:00 o'clock. Q When? A June 6 Wednesday. Q When he told you that did you comply with June 6 appointment? A I told my boss what he told me again that the meeting will take place at Wendy's Restaurant corner Edsa and Camias Street at around 8:00 o'clock p.m. June 6, Wednesday. Q What did your boss tell you? A The next day he told me to ask Dave. Q What did your boss tell you? A My boss told me to ask Dave to postpone the meeting on June 6 to be postponed on June 8 at the same place and same time because my boss is having financial problem. Q Did you relay the postponement to Dave Preclaro? A Yes sir. I told what my boss told me. Q What was his reaction? A Dave told me "O.K. lang with me" because we are not in a hurry. 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

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:

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 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 24 your boss. 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 25 the Sta. Maria construction company.

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 ² 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 InfraStructure 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 Preclaro? ATTY. JIMENEZ: No basis. JUSTICE ESCAREAL: 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. Read back the question. COURT STENOGRAPHER: Reading back the question as ordered by the Court. WITNESS: A Every Monday meeting we tackle with 28 accomplishment report the billing papers. (Emphasis ours.) xxx xxx xxx

Petitioner also claims that the testimonies of the prosecution witnesses regarding the entrapment itself are conflicting, doubtful or improbable: (aaa) according to RESOSO, only FOUR (4) P500 bills were dusted with flourescent powder and used in the alleged entrapment. Contradicting RESOSO, STA. MARIA, SR. said that he gave fifty thousand (P50,000.00) pesos in P500 denomination to the NBI. 29 There is no such inconsistency. Said witnesses were testifying on two different subjects. Engr. Sta. Maria, Sr.'s testimony touched on the amount he gave the NBI for use in the entrapment while Engr. Resoso's declaration referred only to the number of bills dusted with flourescent powder. Petitioner, likewise, misappreciated the following testimony of Resoso: 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: A He asked me if there was express teller. I told him I do not know then he asked me whether it is possible to deposit at the Express Teller at that time. I told him I don't know because I have no express teller card and he asked me how am I going to arrange, how was it arranged if I will bring it, can I bring it. Then I told him that it was placed in two envelopes consisting of 500 Peso bills and then he said "Okay na yan." 31 The failure of the NBI to take photographs of the actual turn-over of the money to petitioner is not fatal to the People's cause. The transaction was witnessed by several people, among whom were Engr. Resoso, Mr. Sta.

Maria Jr. and the NBI agents whose testimonies on the circumstances before, during and after the turn-over are consistent, logical and credible. According to NBI Agent Francisco Balanban Sr., they purposely took no photographs of the actual turn-over so as not to alert and scare off the petitioner. During cross-examination Agent Balanban Jr. stated: xxx xxx xxx Q Now, of course, this entrapment operation, you made certain preparation to make sure that you would be able to gather evidence in support of the entrapment? A Yes sir. Q As a matter of fact you even brought photographer for the purpose? A That is right sir. Q And that photographer was precisely brought along to record the entrapment? A Yes sir. Q From the beginning to the end, that was the purpose? A At the time of the arrest sir. ATTY. JIMENEZ: From the time of the handing over of the envelopes until the entrapment would have been terminated? A No sir we plan to take the photograph only during the arrest because if we take photographs he would be alerted during the handing of the envelopes. (Emphasis ours.) Q So you did not intend to take photographs of the act of handing of the envelopes to the suspect?

A We intended but during that time we cannot take photographs at the time of the handling because the flash will alert the suspect. (Emphasis ours.) JUSTICE ESCAREAL: Why did you not position the photographer to a far distance place with camera with telescopic lens? A We did not Your Honor. ATTY. JIMENEZ: So was it your intention to take photographs only at the time that he is already being arrested? A Yes sir. 32 xxx xxx xxx Petitioner insists that when his hands were placed under ultra-violet light, both were found negative for flourescent powder. This is petitioner's own conclusion which is not supported by evidence. Such self-serving statement will not prevail over the clear and competent testimony and the report 33 submitted by the forensic expert of the NBI Ms. Demelen R. dela Cruz, who was the one who conducted the test and found petitioner's right palmar hand positive for flourescent powder, the same hand he used, according to witnesses Resoso and Sta. Maria Jr., to get the money from the latter. xxx xxx xxx Q Mrs. dela Cruz since when have you been a Forensic Chemist at NBI? A Since 1981 sir. Q JUSTICE ESCAREAL: Q By the way, is the defense willing to admit that the witness is a competent as . . . . ATTY. JIMENEZ: 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 36 money is infinite and boundless. As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who was then engaged in the construction of another DOST building, would not

risk his business or livelihood just to exact revenge which is neither profitable nor logical. As we aptly stated in Maleg v. Sandiganbayan: 37 It is hard to believe that the complainant who is a contractor would jeopardize and prejudice his business interests and risk being blacklisted in government infrastructure projects, knowing that with the institution of the case, he may find it no longer advisable nor profitable to continue in his construction ventures. It is hardly probable that the complainant would weave out of the blue a serious accusation just to retaliate and take revenge on the accused. From the foregoing, the conclusion is inescapable that on the basis of the testimonial and documentary evidence presented during the trial, the guilt of petitioner has been established beyond reasonable doubt. WHEREFORE, the appealed decision of the Sandiganbayan is hereby AFFIRMED. SO ORDERED. Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur.

10 Id., at 11-12. 11 de Leon, Hector S. & de Leon, Hector M. Jr., Law on Public Officers & Election Law (1990 ed.), pp. 64-66. 12 Promulgated on 6 October 1975. 13 Book V, Title I, Subtitle A, Chapter 2, Sec. 6(2). 14 Id., sec. 9. 15 Rollo, p. 15. 16 JOB DESCRIPTION (PROJECT MANAGER) Check contractor's daily activities to conform with schedule; Check quality of construction; Evaluate contractor's accomplishments reports/billings; Advise on time saving construction method; Check adequacy of material supply for scheduled construction scope of work; Advise on adequacy of equipment and manpower. 17 Sec. 3(b), RA No. 3019, otherwise known as the Anti-Graft & Corrupt Practices Act. 18 See Note 15.

Footnotes 1 Rollo, p. 31. 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. 27 TSN, 6 September 1990, p. 13. 28 Id. at 8-11. 29 Rollo, p. 20. 30 TSN, 6 September 1990, p. 21. 31 TSN, 29 October 1990, p. 13. 32 TSN, 12 October 1990, pp. 29-30. 33 Original Records, Exhibits H to H-4. 34 TSN, 29 October 1990, pp. 4-5. 35 Rollo, p. 25. 36 Id. at 296-297. 37 160 SCRA 623 (1988).

Llorente and Yumul for petitioner. Office of the Solicitor General Felix Bautista Angelo and Solicitor Augusto M. Luciano for respondent. BENGZON, J.: 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. The facts found by that appellate court are substantially the following: That on February 27, 1947, the accused, although appointed as a laborer, had been placed in charge of issuing summons and subpoenas for traffic violations in the Sala of Judge Crisanto Aragon of the Municipal Court of the City of Manila. It appears furthermore, from the testimony of Clerk of Court Baltazar and Fiscal De la Merced, then Deputy Fiscal attending to traffic violations, that the accused had been permitted to write motions for dismissal of prescribed traffic cases against offenders without counsel, and to submit them 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 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 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 signed by the party concerned. This was done by the accused and after the signing by Felix Rabia the matter was submitted to the Court, which granted the petition for dismissal. According to Felix Rabia and Agent No. 19 (La forteza) of the National Bureau of Investigation, the accused informed Rabia that the latter was subject to a fine of P15; that Rabia inquired whether the same could be reduced because he had no money, and that the accused informed Rabia that he could fix the case if Rabia would pay him P10; which Rabia did and the accused pocketed. This charged was denied by the accused.

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. L-2971 April 20, 1951

FELICIANO MANIEGO y CATU, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, respondent.

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

named Honorary Chairpersons. People vs. Palomo, 40 Off. Gaz., 10th Supp. p. 2087.

2

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.

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 4 ¶98 Corporation (Expocorp) was created. 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

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 1 the Malolos Congress." 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

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 5 violation« of the anti-graft law." 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. C. 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 reply invokes this Court¶s decision in Uy 9 vs. Sandiganbayan, 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
8

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 foregoing ruling in Uy, however, was short-lived. Upon motion for clarification by the Ombudsman in the same case, the Court set aside the foregoing pronouncement in its Resolution dated March 20, 2001. The Court explained the rationale for this reversal: 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 nonfeasance 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 Constitution 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,
10

including government-owned or controlled corporations." Among the 11 awesome powers, functions, and duties vested by the Constitution 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 13 jurisprudence 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 16 are of this nature, the individual is not a public officer. 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 17 and enforcing their due observance." 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 18 preparations for the Celebration. 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 20 and full employment is a fundamental state policy. 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 25 is to be held for years or during good behavior." 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 30 balancing of accounts, salary, and wages. 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 31 CEO is entitled to per diems and compensation. 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.
2

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.) 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.)
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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

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
13 5

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. Rollo, p. 10. Id., at 134-135. Id., at 15. Id., at 296-297. 312 SCRA 77 (1999). Art. XI, Sec. 12. Art. XI, Sec. 13 (1).

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12

Section 22 extends these investigatory powers, under certain conditions, to private persons: SEC. 22. Investigatory Power. ± The Office of the Ombudsman shall have the power to investigate any serious misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified complaint for impeachment or over Members of Congress, and the Judiciary. In all cases of conspiracy between an officer or employee of the government and a private person, the Ombudsman and his Deputies shall have jurisdiction to include such private person as the evidence may warrant. The officer or employee and the private person shall be tried jointly and shall be subject to the same penalties and liabilities. E.g., Fernandez vs. Ledesma, 7 SCRA 620 (1963); Aparri

vs. Court of Appeals, 127 SCRA 231 (1984).
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26

23 Am Rep. 538 (1876). See Yasay vs. Desierto, 300 SCRA 494 (1998). Preclaro vs. Sandiganbayan, 247 SCRA 454 (1995). Executive Order No. 292. 15 C.J.S. Compensation, p. 654. Rollo, p. 470.

F.R. MECHEM, A TREATISE ON THE LAW OF PUBLIC OFFICES AND OFFICERS, §1. Id., at §§ 4-10. See also 63C Am Jur 2d, Public Officers and Employees §1.
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29

Id., at §4. Ople vs. Torres, 293 SCRA 141 (1998). Id., at Sec. 2. CONSTITUTION, ARTICLE VII, SECTION 1.

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The Lawphil Project - Arellano Law Foundation Republic of the Philippines SUPREME COURT Manila EN BANC

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20

Article XII (National Economy and Patrimony) of the Constitution provides: Section 1. x x x. The State shall promote industrialization and full employment based on sound agricultural development and agrarian reform, through industries that make full and efficient use of human and natural resources, and which are competitive in both domestic and foreign markets. x x x. In the pursuit of these goals, all sectors of the economy and all regions of the country shall be given optimum opportunity to develop. x x x.
21

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.

85 SCRA 599 (1978). Rollo, p. 466.

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.

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Id, at §§7, 15. See also Triste vs. Leyte State College Board of Trustees, 192 SCRA 326 (1990)
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Id., at §13. Id., at § 8. Emphasis supplied.

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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 d. Planning and Programming. 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. Annex A contains the manning list for all the offices, except the OCES. The changes in the organization and in operations shall take place before end of July 1994. Done in Quezon City, July 07, 1994. (Signed) Patricia A. Sto. Tomas Chairman (Signed) Did not participate Ramon P. Ereneta, Jr., Thelma P. Gaminde Commissioner Commissioner

Attested by: (Signed) Carmencita Giselle B. Dayson Board Secretary V 2 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 implement Resolution No. 94-3710 unless restrained by higher authority. 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 21 September 1994, petitioners filed an Urgent Motion for Issuance of a Temporary Restraining Order, alleging that petitioners had received 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 and praying that public respondents be restrained from enforcing these Office Orders. The Court, in a Resolution dated 27 September 1994, granted this Motion and issued the Temporary Restraining Order prayed for by petitioners. 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: (1) Whether or not the Civil Service Commission had legal authority to issue Resolution No. 94-3710 to the extent it merged the OCSS [Office of Career Systems and Standards], the OPIA [Office of Personnel Inspection and Audit] and the OPR [Office of Personnel Relations], to form the RDO [Research and Development Office]; and (2) Whether or not Resolution No. 94-3710 violated petitioners' constitutional right to security of tenure. I. The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 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:

Sec. 16. Offices in the Commission ² The Commission shall have the following offices: (1) The Office of the Executive Director ² . . . (2) The Merit System Protection Board ² . . . (3) The Office of Legal Affairs ² . . . (4) The Office of Planning and Management ² . . . (5) The Central Administrative Office ² . . . (6) The Office of Central Personnel Records ² . . . (7) The Office of Position Classification and Compensation ² . . . (8) The Office of Recruitment, Examination and Placement ² . . . (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 ² . . . (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 ² . . . (14) The Office of Retirement Administration ² . . . (15) The Regional and Field Offices. ² . . . (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. ² 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 ² 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 ² 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 ² efficiency ² [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. ² . . . 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, reemployment, 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 ² not merely assigned ² 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 ² even as public service dictates that a transfer be made ² 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 ² not merely assigned ² 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 ² 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 9 choice. (Emphasis supplied; citation omitted)

In the very recent case of Fernando, et al. v. Hon. Sto. Tomas, etc., et 10 a1., the Court addressed appointments of petitioners as "MediatorsArbiters 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 medarbiters. 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, 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 12

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 15 district they had been appointed as such. 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 ² 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 16 law of public officers. (Emphases supplied) The petitioner, in Miclat v. Ganaden, 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
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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 ² not merely assigned ² 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, 21 more importantly, to a specific station. (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) With respect to the Office of the President, Section 31, Chapter 10, Title III, Book III, Revised Administrative Code of 1987, vested the President with the following authority: The President subject to the policy in the Executive Office 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 purpose, he may take any of the following actions: (1) Restructure the internal organization of the Office of the President Proper, including the immediate offices, the Presidential Special Assistant Adviser System and the Common Staff Support System, by abolishing, consolidating, or merging units thereof, or transferring functions from one unit to another; xxx xxx xxx (Section 31, Chapter 10, Title 3, Book III 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). 16 19 SCRA at 1012-1013. 17 108 Phil. 439 (1960). 18 118 Phil. 728 (1963).

19 See also Bongbong v. Parade et al., 57 SCRA 623 (1974) which involved petitioner's appointment as "rural health physician in the Bureau of Rural Health Units Projects." 20 31 SCRA 637 (1970). 21 31 SCRA at 652-654.

The Lawphil Project - Arellano Law Foundation Republic of the Philippines SUPREME COURT Manila 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 sixtyfive 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 GovernorGeneral 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 GovernorGeneral, 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.

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

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 81954 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

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

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

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 3 4 the Supreme Court." Later on, she abolished the Batasang Pambansa and 5 the positions of Prime Minister and Cabinet under the 1973 Constitution.

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

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 7 questioned herein. 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 AntiGraft 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 14 above Memorandum. On January 26, 1988, Commissioner Mison addressed several notices to various Customs officials, in the tenor as follows: Sir: Please be informed that the Bureau is now in the process of implementing the Reorganization Program under Executive Order No. 127. Pursuant to Section 59 of the same Executive Order, all officers and employees of the Department of Finance, or the Bureau of Customs in particular, shall continue to perform their respective duties and responsibilities in a hold-over capacity, and that those incumbents whose positions are not carried in the new reorganization pattern, or who are not re- appointed, shall be deemed separated from the service. In this connection, we regret to inform you that your services are hereby terminated as of February 28, 1988. Subject to the normal clearances, you may receive the retirement benefits to which you may be entitled under existing laws, rules and regulations. In the meantime, your name will be included in the consolidated list compiled by the Civil Service Commission so that you may be given priority for future employment with the Government as the need arises. Sincerely yours, (Sgd)

SALVADOR M. MISON Commission er15 As far as the records will yield, the following were recipients of these notices: 1. CESAR DARIO 2. VICENTE FERIA, JR. 3. ADOLFO CASARENO 4. PACIFICO LAGLEVA 5. JULIAN C. ESPIRITU 6. DENNIS A. AZARRAGA 7. RENATO DE JESUS 8. NICASIO C. GAMBOA 9. CORAZON RALLOS NIEVES 10. FELICITACION R. GELUZ 11. LEODEGARIO H. FLORESCA 12. SUBAER PACASUM 13. ZENAIDA LANARIA 14. JOSE B. ORTIZ 15. GLICERIO R. DOLAR 16. CORNELIO NAPA 17. PABLO B. SANTOS

18. FERMIN RODRIGUEZ 19. DALISAY BAUTISTA 20. LEONARDO JOSE 21. ALBERTO LONTOK 22. PORFIRIO TABINO 23. JOSE BARREDO 24. ROBERTO ARNALDO 25. ESTER TAN 26. PEDRO BAKAL 27. ROSARIO DAVID 28. RODOLFO AFUANG 29. LORENZO CATRE 30. LEONCIA CATRE 31. ROBERTO ABADA 32. ABACA, SISINIO T. 33. ABAD, ROGELIO C. 34. ABADIANO, JOSE P 35. ABCEDE, NEMECIO C. 36. ABIOG, ELY F. 37. ABLAZA, AURORA M. 38. AGBAYANI, NELSON I.

39. AGRES, ANICETO 40. AGUILAR, FLOR 41. AGUILUCHO, MA. TERESA R. 42. AGUSTIN, BONIFACIO T. 43. ALANO, ALEX P. 44. ALBA, MAXIMO F. JR. 45. ALBANO, ROBERT B. 46. ALCANTARA, JOSE G. 47. ALMARIO, RODOLFO F. 48. ALVEZ, ROMUALDO R. 49. AMISTAD, RUDY M. 50. AMOS, FRANCIS F. 51. ANDRES, RODRIGO V. 52. ANGELES, RICARDO S. 53. ANOLIN, MILAGROS H. 54. AQUINO, PASCASIO E. L. 55. ARABE, MELINDA M. 56. ARCANGEL, AGUSTIN S, JR. 57. ARPON, ULPIANO U., JR. 58. ARREZA, ARTEMIO M, JR. 59. ARROJO, ANTONIO P.

60. ARVISU, ALEXANDER S. 61. ASCAÑ;O, ANTONIO T. 62. ASLAHON, JULAHON P. 63. ASUNCION, VICTOR R. 64. ATANGAN, LORNA S. 65. ANTIENZA, ALEXANDER R. 66. BACAL URSULINO C. 67. BAÑ;AGA, MARLOWE Z. 68. BANTA, ALBERTO T. 69. BARROS, VICTOR C. 70. BARTOLOME, FELIPE A. 71. BAYSAC, REYNALDO S. 72. BELENO, ANTONIO B. 73. BERNARDO, ROMEO D. 74. BERNAS, MARCIANO S. 75. BOHOL, AUXILIADOR G. 76. BRAVO, VICTOR M. 77. BULEG, BALILIS R. 78. CALNEA, MERCEDES M. 79. CALVO, HONESTO G. 80. CAMACHO, CARLOS V.

81. CAMPOS, RODOLFO C. 82. CAPULONG, RODRIGO G. 83. CARINGAL, GRACIA Z. 84. CARLOS, LORENZO B. 85. CARRANTO, FIDEL U. 86. CARUNGCONG, ALFREDO M. 87. CASTRO, PATRICIA J. 88. CATELO, ROGELIO B. 89. CATURLA, MANUEL B. 90. CENIZAL, JOSEFINA F. 91. CINCO, LUISITO 92. CONDE, JOSE C., JR. 93. CORCUERA, FIDEL S. 94. CORNETA, VICENTE S. 95. CORONADO, RICARDO S. 96. CRUZ, EDUARDO S. 97. CRUZ, EDILBERTO A, 98. CRUZ, EFIGENIA B. 99. CRUZADO,NORMA M. 100. CUSTODIO, RODOLFO M. 101. DABON, NORMA M.

102. DALINDIN, EDNA MAE D. 103. DANDAL, EDEN F. 104. DATUHARON, SATA A. 105. DAZO, GODOFREDO L. 106. DE CASTRO, LEOPAPA 107. DE GUZMAN, ANTONIO A. 108. DE GUZMAN, RENATO E. 109. DE LA CRUZ, AMADO A., JR. 110. DE LA CRUZ, FRANCISCO C. 111. DE LA PEÑ;A, LEONARDO 112. DEL CAMPO, ORLANDO 113. DEL RIO, MAMERTO P., JR. 114. DEMESA, WILHELMINA T. 115. DIMAKUTA, SALIC L. 116. DIZON, FELICITAS A. 117. DOCTOR, HEIDY M. 118. DOMINGO, NICANOR J. 119. DOMINGO, PERFECTO V., JR. 120. DUAY, JUANA G. 121. DYSANGCO, RENATO F. 122. EDILLOR, ALFREDO P.

123. ELEVAZO, LEONARDO A 124. ESCUYOS, MANUEL M., JR. 125. ESMERIA, ANTONIO E. 126. ESPALDON, MA. LOURDES H. 127. ESPINA, FRANCO A. 128. ESTURCO, RODOLFO C. 129. EVANGELINO, FERMIN I. 130. FELIX, ERNESTO G. 131. FERNANDEZ, ANDREW M. 132. FERRAREN, ANTONIO C. 133. FERRERA, WENCESLAO A. 134. FRANCISCO, PELAGIO S, JR. 135. FUENTES, RUDY L. 136. GAGALANG, RENATO V. 137. GALANG, EDGARDO R. 138. GAMBOA, ANTONIO C. 139. GAN, ALBERTO P 140. GARCIA, GILBERT M. 141. GARCIA, EDNA V. 142. GARCIA, JUAN L. 143. GAVIOIA, LILIAN V.

144. GEMPARO, SEGUNDINA G. 145. GOBENCIONG, FLORDELIZ B. 146. GRATE, FREDERICK R. 147. GREGORIO, LAURO P. 148. GUARTICO, AMMON H. 149. GUIANG, MYRNA N. 150. GUINTO, DELFIN C. 151. HERNANDEZ, LUCAS A. 152. HONRALES, LORETO N. 153. HUERTO, LEOPOLDO H. 154. HULAR, LANNYROSS E. 155. IBAÑ;EZ, ESTER C. 156. ILAGAN, HONORATO C. 157. INFANTE, REYNALDO C. 158. ISAIS, RAY C. 159. ISMAEL, HADJI AKRAM B. 160. JANOLO, VIRGILIO M. 161. JAVIER, AMADOR L. 162. JAVIER, ROBERTO S. 163. JAVIER, WILLIAM R. 164. JOVEN, MEMIA A.

165. JULIAN, REYNALDO V. 166. JUMAMOY, ABUNDIO A. 167. JUMAQUIAO, DOMINGO F. 168. KAINDOY, PASCUAL B., JR. 169. KOH, NANIE G. 170. LABILLES, ERNESTO S. 171. LABRADOR, WILFREDO M. 172. LAGA, BIENVENIDO M. 173. LAGMAN, EVANGELINE G. 174. LAMPONG, WILFREDO G. 175. LANDICHO, RESTITUTO A. 176. LAPITAN, CAMILO M. 177. LAURENTE, REYNALDO A. 178. LICARTE, EVARISTO R. 179. LIPIO, VICTOR O. 180. LITTAUA, FRANKLIN Z. 181. LOPEZ, MELENCIO L. 182. LUMBA, OLIVIA R. 183. MACAISA, BENITO T. 184. MACAISA, ERLINDA C. 185. MAGAT, ELPIDIO

186. MAGLAYA, FERNANDO P. 187. MALABANAN, ALFREDO C. 188. MALIBIRAN, ROSITA D. 189. MALIJAN, LAZARO V. 190. MALLI, JAVIER M. 191. MANAHAN, RAMON S. 192. MANUEL, ELPIDIO R. 193. MARAVILLA, GIL B. 194. MARCELO, GIL C. 195. MARIÑ;AS, RODOLFO V. 196. MAROKET ,JESUS C. 197. MARTIN, NEMENCIO A. 198. MARTINEZ, ROMEO M. 199. MARTINEZ, ROSELINA M. 200. MATIBAG, ANGELINA G. 201. MATUGAS, ERNESTO T. 202. MATUGAS, FRANCISCO T. 203. MAYUGA, PORTIA E. 204. MEDINA, NESTOR M. 205. MEDINA, ROLANDO S. 206. MENDAVIA, AVELINO

207. MENDOZA, POTENCIANO G. 208. MIL, RAY M. 209. MIRAVALLES, ANASTACIA L. 210. MONFORTE, EUGENIO, JR. G. 211. MONTANO, ERNESTO F. 212. MONTERO, JUAN M. III 213. MORALDE, ESMERALDO B., JR. 214. MORALES, CONCHITA D. L 215. MORALES, NESTOR P. 216. MORALES, SHIRLEY S. 217. MUNAR, JUANITA L. 218. MUÑ;OZ, VICENTE R. 219. MURILLO, MANUEL M. 220. NACION, PEDRO R. 221. NAGAL, HENRY N. 222. NAVARRO, HENRY L. 223. NEJAL FREDRICK E. 224. NICOLAS, REYNALDO S. 225. NIEVES, RUFINO A. 226. OLAIVAR, SEBASTIAN T. 227. OLEGARIO, LEO Q.

228. ORTEGA, ARLENE R. 229. ORTEGA, JESUS R. 230. OSORIO, ABNER S. 231. PAPIO FLORENTINO T. II 232. PASCUA, ARNULFO A. 233. PASTOR, ROSARIO 234. PELAYO, ROSARIO L. 235. PEÑ;A, AIDA C. 236. PEREZ, ESPERIDION B. 237. PEREZ, JESUS BAYANI M. 238. PRE, ISIDRO A. 239. PRUDENCIADO, EULOGIA S. 240. PUNZALAN, LAMBERTO N. 241. PURA, ARNOLD T. 242. QUINONES, EDGARDO I. 243. QUINTOS, AMADEO C., JR. 244. QUIRAY, NICOLAS C. 245. RAMIREZ, ROBERTO P. 246. RANADA, RODRIGO C. 247. RARAS, ANTONIO A. 248. RAVAL, VIOLETA V.

249. RAZAL, BETTY R. 250. REGALA, PONCE F. 251. REYES, LIBERATO R. 252. REYES, MANUEL E. 253. REYES, NORMA Z. 254. REYES, TELESPORO F. 255. RIVERA, ROSITA L. 256. ROCES, ROBERTO V. 257. ROQUE, TERESITA S. 258. ROSANES, MARILOU M. 259. ROSETE, ADAN I. 260. RUANTO, REY CRISTO C., JR. 261. SABLADA, PASCASIO G. 262. SALAZAR, SILVERIA S. 263. SALAZAR, VICTORIA A. 264. SALIMBACOD, PERLITA C. 265. SALMINGO, LOURDES M. 266. SANTIAGO, EMELITA B. 267. SATINA, PORFIRIO C. 268. SEKITO, COSME B JR. 269. SIMON, RAMON P.

270. SINGSON, MELENCIO C. 271. SORIANO, ANGELO L. 272. SORIANO, MAGDALENA R. 273. SUNICO, ABELARDO T . 274. TABIJE, EMMA B. 275. TAN, RUDY GOROSPE 276. TAN, ESTER S. 277. TAN, JULITA S. 278. TECSON, BEATRIZ B. 279. TOLENTINO, BENIGNO A. 280. TURINGAN, ENRICO T JR. 281. UMPA, ALI A. 282. VALIC, LUCIO E. 283. VASQUEZ, NICANOR B. 284. VELARDE, EDGARDO C. 285. VERA, AVELINO A. 286. VERAME, OSCAR E. 287. VIADO, LILIAN T. 288. VIERNES, NAPOLEON K 289. VILLALON, DENNIS A. 290. VILLAR, LUZ L.

291. VILLALUZ, EMELITO V. 292. VILLAR, LUZ L. 293. ZATA, ANGELA JR. 294. ACHARON, CRISTETO 295. ALBA, RENATO B. 296. AMON, JULITA C. 297. AUSTRIA, ERNESTO C. 298. CALO, RAYMUNDO M. 299. CENTENO, BENJAMIN R. 300. DONATO, ESTELITA P. 301. DONATO, FELIPE S 302. FLORES, PEDRITO S. 303. GALAROSA, RENATO 304. MALAWI, MAUYAG 305. MONTENEGRO, FRANSISCO M. 306. OMEGA, PETRONILO T. 307. SANTOS, GUILLERMO P. 308. TEMPLO, CELSO 309. VALDERAMA, JAIME B. 310. VALDEZ, NORA M. Cesar Dario is the petitioner in G.R. No. 81954; Vicente Feria, Jr., is the petitioner in G.R. No. 81967; Messrs. Adolfo Caserano Pacifico Lagleva

Julian C. Espiritu, Dennis A. Azarraga Renato de Jesus, Nicasio C. Gamboa, Mesdames Corazon Rallos Nieves and Felicitacion R. Geluz Messrs. Leodegario H. Floresca, Subaer Pacasum Ms. Zenaida Lanaria Mr. Jose B. Ortiz, Ms. Gliceria R. Dolar, Ms. Cornelia Napa, Pablo B. Santos, Fermin Rodriguez, Ms. Daligay Bautista, Messrs. Leonardo Jose, Alberto Lontok, Porfirio Tabino Jose Barredo, Roberto Arnaldo, Ms. Ester Tan, Messrs. Pedro Bakal, Rosario David, Rodolfo Afuang, Lorenzo Catre,, Ms. Leoncia Catre, 16 and Roberto Abaca, are the petitioners in G.R. No. 82023; the last 279 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 19 Commission, on September 20, 1988, denied reconsideration. 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 23 concerned. 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 ² insofar as these cases are concerned, the reorganization of the Bureau of Customs ² 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 26 interest, including the need for stability in the public service," 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 30 General filed a motion for reconsideration on July 15, 1988. 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 35 "digging into the merits and unearthing errors of judgment 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 ² assuming that the Civil Service Commission erred ² 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 ² as regards recourse to this Court with respect to rulings of the Civil Service Commission ² 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 36 law. 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 37 body is the "sole judge" 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 38 to the Supreme Court on certiorari," 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 43 a resort to a special civil action. 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] 45 whose [position] [is] not included therein or who [is] not reappointed" 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 46 proposed by the Secretary of Finance 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 49 which has been abolished." 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 51 tenure under the provisions of the 1987 Constitution. 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 ² 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. 54 Arroyo 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 55 result of such reorganization. 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 ² 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. ² 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 ² in so far as it mentions removals not for cause ² 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 64 the Constitution on February 2, 1987]. 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 65 of the inauguration of the Commonwealth of the Philippines. 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 67 of one year from February 25, 1986. 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 ² 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 ² whether under the Freedom or existing Constitution ² 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 ² 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 70 February 2, 1987. 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 ² the first stage. We are on the second stage ² 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 ² 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 71 and undeserving are separated from the government service; 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 72 personnel as a result of the government reorganization. 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. ² The controversy seems to be that we have, ourselves, supposedly extended the effects of government reorganization under the Provisional Constitution to 73 the regime of the 1987 Constitution. Jose v. Arroyo 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 75 petition primarily because it was "clearly premature, speculative, and purely anticipatory, based merely on newspaper reports which do not show any 76 direct or threatened injury," 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 77 disposition of the case. In Morales v. Parades, 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 fullblown 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 ² which had already been consummated ² the second stage being that adverted to in the transitory provisions themselves ² 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 79 1987 Constitution, 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 ² 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 80 tenure would be an insuperable implement. 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 83 existence of ample funds. 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. ² The Court finds that after February 2, 1987 no perceptible restructuring of the Customs hierarchy ² except for the change of personnel ² 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 ² or a reorganization actually undertaken, for that matter ² 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 87 consequence of reorganization. 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. ² 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

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 90 latter on security of tenure govern. 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. ² 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; PalmaFernandez vs. De la Paz, supra); in this connection, Section 59 (on nonreappointment 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

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.

argued that the Act, insofar as it strengthens security of tenure 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.

91

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 openended reorganization of the government "following the ratification of the Constitution." I read the provision as merely conferring benefits ² deservedly

or not ² 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 ² no matter how lengthy ² 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 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

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 ² 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

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

efficiently managing the financial resources of the Government, its subdivisions and instrumentalities in order to attain the socioeconomic objectives of the national development programs. 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

SEC. 2. Reorganization. ² 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. ² 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. ² 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.

On 30 January 1987, Executive Order No. 127 was issued "Reorganizing the 1 Ministry of Finance." Similar Orders, approximately thirteen (13) in all, 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

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 ² 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)

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:

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:

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)

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)

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 letterreply 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

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 twentytwo (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

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

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.

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 holdover 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 PalmaFernandez 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

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."

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

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 ² 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 ² 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 openended reorganization of the government "following the ratification of the Constitution." I read the provision as merely conferring benefits ² deservedly or not ² 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 ² no matter how lengthy ² 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. 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

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 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.

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 ² GOVERNMENT REORGANIZATION

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

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 socioeconomic objectives of the national development programs. 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;

SEC. 2. Reorganization. ² 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. ² 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. ² 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 ² 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)

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

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

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

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)

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 letterreply by Executive Secretary Catalino Macaraig, Jr., dated 22 December 1987.

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 twentytwo (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 holdover 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 PalmaFernandez 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 ² 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 ² 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. 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.

12

Rollo, G.R. No. 85310, 317-31. Id., 317. Id., 8.

13

14

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

Footnotes
1

Proc No. 3, (PROVISIONAL CONST.), art. II, sec. l(a). Supra, art. III, secs. 1-4. Proc. No. 1 (1986). CONST. (1986), supra, art. 1, sec. 3. Supra.

2

The last eighteen are the successful employees in the appeal with the Civil Service Commission (subject of G.R. No. 85310) whose reinstatement the Commission ordered pending further proceedings herein. We consider them impleaded as parties respondents in G.R. No. 85310. Also, the Customs employees involved have been impleaded as parties in more than one petition either as petitioners or respondents.
17

3

4

Rollo, id., G.R. No. 85310, 8; according, however, to the petitioners in G.R. 86241, a total of 397 employees were terminated. id., 260; former Sen. Ambrosio Padilla, amicus curiae, placed the figure at 493 (G.R. No. 85310, id., 993).
18

5

Rollo, id., G.R. No. 85310, 79; also rollo, G.R. No. 85335, 36. Rollo, id., G.R. No. 85310, 424 Rollo, G.R. No. 86241, 144

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, 1987; Ignacio v. Banata, G.R. No. 74720, August 31, 1987; Association of Barangay Councils of Las Pinas v. Juntilla, G.R. No. 78965, November 17, 1987; Ramos v. Lorenzana, G.R. No. 80282, November 26, 1987; Del Monte v. Ferrer, G.R. 78963, January 13, 1988; Yasay v. Flores, G.R. No. 81047, January 7, 1988; ending with De Leon v. Esguerra, No. 78059, August 31, 1987, 153 SCRA 602.
7

6

19

20

Jose v. Arroyo, G.R. No. 78435, August 11, 1987; Palma Fernandez v. De la Paz, No. 78496, August 15, 1988, 160 SCRA 751. Exec. Ord. No. 17, sec. 3. 88 O.G. 2009-2024 (Apr., 1987). Exec. Ord. No. 127, supra, secs. 33-38.

Senen Dimaguila and Romulo Badillo earlier instituted in this Court 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 Service Commission's Resolution of November 11, 1988, See rollo, G.R. No. 82023, 169
22

21

84 O.G. Supp. 1-4 (June, 1988). Supra, 3. CONST. (1987), art. XVIII, sec. 16.

8

23

9

24

10

11

De Leon v. Esguerra, supra. The writer of this opinion dissented, and maintained that the new Constitution was ratified on February 11, 1987.

This was raised by the Civil Service Commission in G.R. No. 86241. Failure to exhaust administrative remedies was raised in G.R. No. 81954 and 81917 by the Solicitor General.

25

26

Sarmiento III v. Mison, No. L-79974, December 17, 1987, 153 SCRA 549, 551-552.
27

See Aratuc v. Commission on Elections, Nos. L-49705-09, 4971721, February 8, 1979, 88 SCRA 251.
34

33

Pres. Decree No. 807, sec. 39. The provision reads: "Appeals. ² (a) Appeals, where allowable, shall be made by the party adversely affected by the decision within fifteen days from receipt of the decision unless a petition for reconsideration is seasonably filed, which petition shall be decided within fifteen days. Notice of the appeal shall be filed with the disciplining office, which shall forward the records of the case, together with the notice of appeal, to the appellate authority within fifteen days from filing of the notice of appeal, with its comment, if any. The notice of appeal shall specifically state the date of the decision appealed from and the date of receipt thereof. It shall also specifically set forth clearly the grounds relied upon for excepting from the decision; (b) A petition for reconsideration shall be based only on any of the following grounds: (1) new evidence has been discovered which materially affects the decision rendered; (2) the decision is not supported by the evidence on record; or (3) errors of law or irregularities have been committed prejudicial to the interest of the respondent; Provided, That only one petition for reconsideration shall be entertained."
28

Supra, 271. Supra. Aratuc supra, 270.

35

36

37

CONST. (1987), supra, art. IX sec. 2(2). To be more precise, the 1987 Constitution gives the Commission "exclusive original jurisdiction over all [election] contests.'
38

Supra, art. IX, sec. 7. Aratuc supra, 271; emphasis supplied. Rep. Act No. 6656, supra, sec. 8. RULES OF COURT, Rule 65, sec. 1. CONST. (1987), art. IX, sec. 7, supra.

39

40

41

Rep. Act No. 6656, supra, sec. 8. The provision reads: "Sec. 8. An officer or employee who is still not satisfied with the decision of the appointing authority may further appeal with ten (10) days from receipt thereof to the Civil Service Commission which shall render a decision thereon within thirty (30) days and whose decision shall be final and executory." CONST., art. IX, sec, 7. The provision reads: "Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.
30 29

42

43

Phil. American Life Ins. Co. vs. Social Security Com No. L-20383, May 24, 1967, 20 SCRA 162,
44

Exec. Ord. No. 127, supra, sec. 59. Supra. Rollo, id., G.R. No. 81954, 36. Exec. Ord. No. 127, supra, see. 34; rollo, id., G.R. No. 81954. Exec. Ord. No. 127, supra, sec. 59. Rollo, id., G.R. No. 81954,12; emphasis in the original. CONST. (1986), Supra, art. IX, sec. 2. CONST. (1987), supra, art. IXB sec. 2(3). August 8, 1986.

45

46

47

48

49

Rollo, id., G.R. No. 85310, 82. id., 415. CONST. (1987), supra.

50

31

51

32

52

53

Supra, sec. 1(a) G.R. No. 78435, August 11, 1987. Supra, 3. CONST. (1987), supra, art. XVIII, sec. 16.

*

Paradoxically, Executive Order No. 17 would have provided a "cause" for removal.
72

54

OP Memo (October 14, 1987). Supra, see fn. 7. Arroyo, supra, 3.

55

73

56

74

57

Rollo, id., G.R. No. 81954, 216; rollo, id., G.R. No. 81967, 64; rollo, id., G.R. No. 82023, 76.
58

75

The petitioner was Leonardo Jose, a Collector III at the Bureau of Customs.
76

Supra. See Exec. Ord. No. 17, supra, sec. 1. Rollo, id., G.R. No. 85310, 18; rollo, id., G.R. No. 86241, 14. Id.; id., 13. Id., 37; id., 33. CONST. (1987), art. XVIII, sec. 16, supra. See fn. 11. CONST. (1935), art. XVI, sec. 4. CONST. (1973), art. XVII, sec. 9. CONST. (1986); art. III, sec. 2, supra.

Supra, 2. 55 Phil. 565 (1930). Supra. Art. III, sec. 1 and art. IX(B) sec. 2(3).

59

77

60

78

61

79

62

63

64

Supra. In Palma-Fernandez, we upheld claims of authority of tenure in the absence of a bona fide reorganization. In that case, 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 for cause," provided that there is a valid reorganization. Ginson v. Municipality of Murcia, supra; De la Llana v. Alba, supra; Cruz v. Primicias Jr., supra.
82 81

80

65

66

67

Ginson v. Municipality of Murcia, No. L-46585, February 8, 1988, 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 SCRA 998.
69

68

Palma Fernandez, supra. In that case, the office of "Chief of Clinic' was purportedly abolished and in its place an office of "Assistant Director for Professional Services" was created. We held that the two positions "are basically one and the same except for the change of nomenclature (767.)
83

Ginson supra; Cruz, supra.

III RECORD OF THE CONSTITUTIONAL COMMISSION, 16151616 (1986).
70

**

Although as we also said, Executive Order No. 17 itself imposed a "cause" for removals under the Freedom Constitution. Rep. Act No. 6156, supra. See G.R. Nos. 81964, 81967, id., 10-11.

De Leon v. Esguerra, supra; Palma-Fernandez v. De la Paz, supra. Exec. Ord. No. 17, supra.

84

71

85

86

G.R. No. 86421, id., 31. OP Memo (Oct., 14, 1987), supra.

G.R. No. 124374 December 15, 1999 ISMAEL A. MATHAY JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION, 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 FRANCISCO, WILLIAM PANTI, JR., MICHAEL A. JACINTO and CESAR DACIO, respondents. G.R. No. 126354 December 15, 1999 CIVIL SERVICE COMMISSION, petitioner, vs. THE HON. COURT OF APPEALS and ISMAEL A. MATHAY, JR., respondents. G.R. No. 126366 December 15, 1999 ISMAEL A. MATHAY, JR., in his capacity as MAYOR OF QUEZON CITY, petitioner, vs. COURT OF APPEALS, CIVIL SERVICE COMMISSION and SANDY C. MARQUEZ, respondents.

87

See Free Telephone Workers Union v. Minister of Labor and Employment, No. 58184, October 30, 1981, 1108 SCRA 757. Supra. With respect to Vicente Feria, Jr., the records reveal that his appointment was extended on April 22, 1986. (G.R. No. 81967, id., 7.) For that reason, he cannot be said to be an "incumbent" for purposes of reorganization, to whom a reappointment may be issued. 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.
90 89

88

Supra, 757. Supra, sec. 9. Supra, sec. 13. Supra, sec. 2.

91

92

93.

Melencio-Herrera, J.: Executive Orders Nos. 11 6 (Agriculture and Food); 117 Education 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 Resources); 132 (Foreign Affairs); and 133 (Trade and Industry).
1

YNARES-SANTIAGO, J.: Before this Court are three, consolidated petitions filed under Rule 45 of the Revised Rules of Court. The facts behind the consolidated petitions are undisputed.
1

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila EN BANC

During his term as Mayor of Quezon City, Mr. Brigido R. Simon 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 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 Official Gazette. Therefore, conformably with our ruling in Tanada vs. 3 Tuvera 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 5 absorption in Quezon City Ordinance No. NC-140, Series of 1990, 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 8 of separation of powers is not applicable to local governments." 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 9 appoint is vested in the local chief executive. 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 16 permanent positions. Accordingly, as petitioner correctly points out, the private respondents' appointments in the defunct CSU ² 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 17 and conferring it. 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 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 19 of an office does not mean the invalidity of appointments thereto," 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 21 in the DPOS and the number of personnel to be absorbed. 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
18

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. NC140 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 23 interest in the question involved, or mere incidental interest." 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 nonreinstatement. We are aware of our pronouncements in the recent case of Civil Service 24 Commission v. Pedro Dacoycoy which overturned our rulings in 25 Paredes vs. Civil Service Commission Mendez vs. Civil Service 26 27 Commission and Magpale vs. Civil Service Commission. 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, GonzagaReyes 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 Jr., Michael A. Jacinto and Cesar Dacio. In G.R. No. 126366 private respondent is Sandy Marquez. In G.R. No. 126354 there is no private respondent (Jovito C. Labajo did not appeal from the order of the Court of Appeals). 3 148 SCRA 446 (1986). 4 Opinion No. 33 of the Secretary of Justice, February 1991. 5 CSC Resolution No. 92-1974 (G.R. No. 126366). 6 CSC Resolution No. 95-3003 (G.R. Jo. 124374). 7 G.R. Nos. 114320 and 120442. 8 Page 8 of the Fifteenth Division of the Court of Appeals 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. 9 Sec. 1719 of B.P. 337 provides that, "the city mayor shall . . . appoint in accordance with Civil Service law, rules and regulations all officers and employees of the city, whose appointments are not otherwise provided in this Code." 10 The express mention of one thing in a law will, as a general rue, mean the exclusion of others not expressly mentioned. This rule as a guide to probable legislative intent is based upon rules of logic and the natural workings of the human mind (Tavora vs. Gavina, 79 Phil. 421). 11 Orbos vs. Civil Service Commission, 189 SCRA 459 (1990); Villanueva vs. Balallo, 9 SCRA 407 (1963); Santos vs. Chito, 25 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 741 (1989). 12 256 SCRA 396 (1996).

13 Gloria vs. Judge de Guzman, G.R. No. 116183, October 6, 1995. 14 227 SCRA 320 (1994). 15 Rollo (G.R. 124374), p. 47. 16 Rollo (G.R. 12633), p. 32. 17 Aparri vs. Court of Appeals, 127 SCRA 234 (1984). 18 263 SCRA 184 (1996). 19 Rollo (G.R. 126366), p. 21. 20 197 SCRA 168 (1991). 21 The defunct CSU consisted of 64 positions, to wit: Number of Positions Title of Position Monthly Salary 1 Office Head P12,650.00 1 Assistant Dept. Head III P11,385.00 2 Security Officer IV P8,250.00 20 Security Officer II P4,418.00 2 Security Agent II P3,102.00 9 Security Agent I P2,752.00 24 Security Guard II P2,355.00 1 Clerk III P2,473.00 2 Clerk II P2,250.00 1 Driver P2,250.00 1 Utility Worker P2,000.00

²²²² 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

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

Supervisor P5,670.00 1 Security Officer II P4,418.00 G.R. No. 122197 June 26, 1998 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 ²²²² 282 Positions MARTINEZ, J.: This petition for certiorari seeks the reversal of the decision of the 1 Commission on Audit dated September 7, 1995, 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 ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON AUDIT, respondent.

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 4 cases of Cui, et. al. vs. Ortiz, et. al., April 29, 1960; and, Menzon vs. Petilla, 5 May 20, 1991, 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. ² (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 nonpayment 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. petitioner's case. In Cui, this Court held:
11

does not apply in

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 retroacts 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 12 pagpirma ng puno ng tanggapan o appointing authority. 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, Kapunan, Mendoza, Panganiban, Quisumbing and Purisima, JJ., concur. Footnotes 1 COA Decision No. 95-467. 2 Annex "A," Petition, rollo, pp. 16-19. HERMOSISIMA, JR., J.:p 3 P. 5, Petition. 4 G.R. No. l-13753. 5 197 SCRA 253. 6 COA Decision, Annex "A," Petition, pp. 16-19, rollo. 7 Animos vs. Philippine Veterans Affairs Office, 174 SCRA 214, 218. 8 Philippine Law Dictionary, p. 162. 9 People vs. Gabitanan, 43 OG 3211; 8 App. Ct. Rep. 623. 10 197 SCRA 253. 11 107 Phil. 1000. 12 Annex "B," Petiton, rollo, p. 20.

EN BANC

LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS and JOSEPH EVANGELISTA, respondents.

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 salary and other emoluments for the period, from March, 1994 to April, 1995, en masse denominated as actual damages, notwithstanding the fact that the electoral controversy had become moot and academic on account of the expiration of the term of office of the Municipal Mayor of Kidapawan, North Cotabato. Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a temporary restraining order and writ of preliminary injunction, 1 seeking the review of the decision en banc of the Commission of Elections 2 (COMELEC) denying the motion for reconsideration of the decision of its 3 4 First Division, which reversed the decision of the Regional Trial Court 5 in 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, on the contrary, found private respondent Joseph Evangelista to be the rightful winner in said elections. Petitioner Luis Malaluan and private respondent Joseph Evangelista were 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 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 election protest with the Regional Trial Court contesting 64 out of the total 181 precincts of the said municipality. The trial court declared petitioner as the duly elected municipal mayor of Kidapawan, North Cotabato with a

The Lawphil Project - Arellano Law Foundation

Republic of the Philippines SUPREME COURT Manila

plurality of 154 votes. Acting without precedent, the court found private respondent liable not only for Malaluan's protest expenses but also for moral 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 7 mayoralty seat in his municipality 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 ² citing the same provision of the Rules of Court upon which petitioner staunchly places reliance ² 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 14 included such claims in his pleadings." 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 15 damages. 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 1 other relief. . . . 7 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 20 item of recoverable damage. 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 quasicontracts, 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 ² after the Court declared him a winner ² 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 24 requirement that there be a good and special reason 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 2 Canvassers." 7 . . . 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 30 the instant case is the ruling in Rodriguez vs. Tan 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 33 pertaining thereto" and is thus "legally entitled to the emoluments of the 34 office." 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 COMELEC decision dated May 5, 1995 that private respondent Joseph Evangelista is the winner in the election for mayor of the Municipality of 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 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. SO ORDERED. 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. 4 Dated January 31, 1994; Rollo, pp. 90-135. 5 Regional Trial Court of Kidapawan, Cotabato, 12th Judicial Region, presided by Judge Rodolfo M. Serrano. 6 Election Case No. 881. 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, En Banc, Minute Resolution. 8 Atienza v. Commission on Elections, 239 SCRA 298; Abeja v. Tañada, 236 SCRA 60; Yorac v. Magalona, 3 SCRA 76. 9 Yorac v. Magalona, supra. 10 3 SCRA 76. 11 239 SCRA 298. 12 Atienza v. Commission on Elections, supra.

13 B.P. Blg. 881, Sec. 259. 14 COMELEC Rules of Procedure, Rule 35, Sec. 19. 15 Atienza v. Commission on Elections, 239 SCRA 298. 16 Ibid. 17 Civil Code of the Philippines, Preliminary Title, Chapter 2. 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. 23 Atienza v. COMELEC, 239 SCRA 298. 24 Rules of Court, Rule 39, Section 2. 25 206 SCRA 779. 26 Ibid. 27 Garcia v. De Jesus, 206 SCRA 779. 28 Gahol v. Riodique, 64 SCRA 494. 29 Roxas v. Court of Appeals, 157 SCRA 370. 30 91 Phil. 724. 31 Tayco v. Capistrano, 53 Phil. 866. 32 Ibid. 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.

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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. IXB, 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 4 for by law, and those whom he may be authorized by law to appoint", since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the Omnibus Election Code, which says: Sec. 261. Prohibited Acts. ² The following shall be guilty of an election offense: . . . (g) Appointment of new employees, creation of new position, promotion, or giving salary increases. ² 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

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 ² (d) Chairman administrator ² The President shall appoint a professional manager as administrator of the Subic Authority

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 governmentowned 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 fulltime 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 6 Reform, G.R. No. 83815, ". . . . 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 ² 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, VicePresident, 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 15 foreclose the issue. It is a legislative choice." 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 16 receive double compensation 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 18 discharge the duties of the same. In his treatise, Philippine Political 19 Law, 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 20 necessarily exercises a discretion. According to Woodbury, J., "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 24 power of appointment. 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. ² State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 27 283 Ala 445)." 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 28 Am. Rep., 323)." 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 ² . . . . (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 31 expediency, personal ambitions or ill-advised agitation for change." 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 governmentowned 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. ² (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 decreemaking 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

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

BERNARDO TORRES, protestant-appellant, vs. MAMERTO S. RIBO and ALEJANDRO BALDERIAN, respondentsappellees. 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.

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 ² (a) No election returns for board members in Precinct No. 1. (b) No election return in Precinct No. 11. 2. Leyte ² (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 ² 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 ² 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.) 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 was no acquiescence, public or private, in their discharge of the position. In fact the very person most greatly affected by their assumption of the office, Bernardo Torres, was not notified and was not unaware of it. 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 ² the provincial governor, the two members of the provincial board, the provincial treasurer, the provincial auditor and the provincial fiscal ² subject to be replaced by the officers named in the same section in case of their absence or disability. The Revised Election Code does not state the number of the members of the canvassing board necessary to be present at the canvass. One court has held that when one member absents himself from the session before completion of the canvass the acts of the remaining members of the board in completing the canvass and certifying the result were valid. (Ex parte Smith [Okl.] 154, page 521.) Some courts, however have held that the canvassers cannot act unless all are present. (Chumasero vs. Patts, 2 Mont., 242 [writ of error dismissed 92 U. S., 358; 23 L. ed., 499].) 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 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.

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

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 110544 October 17, 1995 REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO FABURADA, (former Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and FORMER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners, vs. THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA ESTRELLANES, respondents.

KAPUNAN, J.: Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set aside the resolution of the Sandiganbayan dated 17 February 1992 and its orders dated 19 August 1992 and 13 May 1993 in Criminal Case No. 16936 entitled "People of the

Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for suspension of their arraignment. The present controversy arose from the following antecedents: On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were designated as industrial labor sectoral representative and agricultural labor sectoral representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros Oriental by then Secretary Luis T. Santos of the Department of Local Government. Private respondents Binaohan and Estrellanes took their oath of office on 16 February 1989 and 17 February 1989, respectively. Subsequently, petitioners filed an undated petition with the Office of the President for review and recall of said designations. The latter, however, in a letter dated 20 March 1989, denied the petition and enjoined Mayor Reynaldo Tuanda to recognize private respondents as sectoral representatives. On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court of Negros Oriental, Branch 35, docketed as Special Civil Action No. 9661, for recognition as members of the Sangguniang Bayan. It was dismissed on 23 July 1991. Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of Dumaguete City to declare null and void the designations of private respondents as sectoral representatives, docketed as Civil Case No. 9955 entitled "Reynaldo Tuanda, et al. versus Secretary of the Department of Local Government, et al." On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." charging petitioners thus: INFORMATION The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019, as amended, committed as follows: That during the period from February 1989 to February 1991 and subsequent thereto, in

the Municipality of Jimalalud, Negros Oriental, and within the jurisdiction of this Honorable Court, accused, all public officers, Mayor REYNALDO V. TUANDA, Vice-Mayor HERMENEGILDO G. FABURADA, Sangguniang Members MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES and SANTOS A. VILLANUEVA while in the performance of their official functions and taking advantage of their public positions, with evident bad faith, manifest partiality, and conspiring and confederating with each other did, then and there, wilfully and unlawfully cause undue injury to Sectoral Members Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay despite demand the amount of NINETY FIVE THOUSAND THREE HUNDRED FIFTY PESOS (P95,350.00) and ONE HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS (P108,900.00) representing respectively their per diems, salaries and other privileges and benefits, and such undue injury continuing to the present to the prejudice and damage of Bartolome Binaohan and Delia Estrellanes. CONTRARY TO LAW.
1

On 9 September 1991, petitioners filed a motion with the Sandiganbayan for suspension of the proceedings in Criminal Case No. 16936 on the ground that a prejudicial question exists in Civil Case No. 9955 pending before the 2 Regional Trial Court of Dumaguete City. 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 3 as the Local Government Code. 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 ² 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 prerequisite. 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

8

On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents pending the issuance of an extended resolution.

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

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' 6 original motion to hold the case in abeyance. 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

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 10 process.

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 16 entitled to compensation for actual services rendered. We disagree. As found by the trial court and as borne out by the records, from the start, private respondents' designations as sectoral representatives have been challenged by petitioners. They began with a petition filed with the Office of the President copies of which were received by private respondents on 26 February 1989, barely eight (8) days after they took their oath of office. 17 Hence, private respondents' claim that they have actually rendered services as sectoral representatives has not been established. Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private respondents' designations are finally declared invalid, they may still be considered de facto public officers entitled to compensation for services actually rendered. The conditions and elements of de facto officership are the following: 1) There must be a de jure office;

2) There must be color of right or general acquiescence by the public; and 3) There must be actual physical possession of the office in 18 good faith. One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de facto officer where there is no de jure office, although there may be a de facto officer in a de jure office. 19 WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13 May 1993 of respondent Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE. Respondent Sandiganbayan is enjoined from proceeding with the arraignment and trial of petitioners in Criminal Case No. 16936 pending final resolution of CA-G.R. CV No. 36769. SO ORDERED. Padilla, Davide, Jr. and Bellosillo, JJ., concur.

11 Edgardo C. Paras, Rules of Court Annotated Vol. Three, 1990, citing People v. Aragon, L-5930, 17 Feb. 1954. 12 Yap v. Paras, 205 SCRA 625 (1994); Quiambao v. Osorio, 158 SCRA 674 (1988); Donato v. Luna, 160 SCRA 441 (1988); Ras v. Rasul, 100 SCRA 125 (1980). 13 Librodo v. Coscolluela, Jr., 116 SCRA 303 (1982): see also Apa, et al. v. Fernandez, et al., G.R. No. 112381, March 20, 1995. 14 Developments In The Law On Prejudicial Questions, 44 SCRA 208 (1972). 15 Sec. 5, Rule III of Revised Rules of Court; Yap v. Paras, supra, Umali v. IAC, 186 SCRA 680 (1990). 16 Rollo, p. 92.

Hermosisima, Jr., J., took no part. 17 Id., at 52-53. Footnotes 1 Rollo, pp. 36-37. 2 Id., at 38-50. 3 Id., at 51-60. 4 Id., at 59-61. 5 Id., at 34-35. 6 Id., at 30. 7 Id., at 31. 8 Id., at 82. 9 Id., at 29. 10 Id., at 13-14. G.R. No. L-23258 Republic of the Philippines SUPREME COURT Manila EN BANC July 1, 1967 18 Hector S. De Leon and Hector M. De Leon, Jr., Law on Public Officers and Election Law, 1990 ed., pp. 87-88. 19 Government of the Philippine Islands v. Springer, 50 Phil. 259.

The Lawphil Project - Arellano Law Foundation

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 1 Commission on Elections, per resolution, 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 ² 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 3 administrative questions are reviewable only by the Supreme Court. 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 ² 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 7 duties of an office without being lawful officers. 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 8 of his wrongful retention of the public office. 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. Arsenio, J., is on leave. Sanchez, Castro and Fernando, JJ., took no part. Footnotes
1

The records of this case do not include a copy of this resolution. Hence, it nowhere appears when this resolution was issued.
2

Philippine Constitution, Art. X, sec. 2. Ibid; see also: Sec. 5, Rev. Election Code. See: Guevara vs. Commission on Elections, L-12596, July 31, 1958. See: Ramos v. Pepsi-Cola, L-22533, Feb. 9, 1967.

3

4

5

6

Walker v. Hughes, 36 A 2d 47, 151 ALR 946, 949-950.

7

See: 2 Tañada & Carreon, Political Law of the Phils., 1962, pp. 544545.
8

II and then as Finance Officer (SG-16) in 1980.

3

Walker vs. Hughes, supra.

The Lawphil Project - Arellano Law Foundation PHILIPPINE JURISPRUDENCE - FULL TEXT The Lawphil Project - Arellano Law Foundation G.R. No. 129616 April 17, 2002 THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA), ET AL. vs. JULIETA MONSERATE

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 Resource Management Division, same office. The Comparative Data Sheet4 accomplished by the PPA Reorganization Task Force shows the ranking of the six (6) aspirants to the said position, thus: "COMPARATIVE DATA SHEET OFFICE: DIVISION: POSITION: PMO ILOILO RES. MANAGEMENT DIVISION DIVISION MANAGER CS PROF / RA 1080 ELIGIBILITY CS Prof. 1st grade PD 907 (CPA) CS Prof. Bar RA 1080 xxx xxx xxx xxx xxx xxx xxx

Republic of the Philippines SUPREME COURT Baguio City THIRD DIVISION G.R. No. 129616 April 17, 2002

REQUIRED CS ELIG.: CANDIDATES 1. MONSERATE, JULIETA 2. ANINO, RAMON 3. TEODOSIO, APRIL 4. MORTOLA, DARIO 5. ESPINOSA, AMALIK 6. PERFECTO, BASCOS

THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON ANINO, petitioners, vs. JULIETA MONSERATE, respondent. SANDOVAL-GUTIERREZ, J.: 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 and void the Resolution No. 952043 dated March 21, 1995 and Resolution No. 956640 dated October 24, 1995 of the Civil Service Commission (CSC), and ordering the reinstatement of Julieta G. Monserate as Division Manager II of the Resources Management Division, Ports Management Office, Philippine Ports Authority (PPA), Iloilo City. The facts are: Julieta Monserate, respondent, started her government service in 1977 as Bookkeeper II in the Port Management Office, PPA, Iloilo City. Barely a year later, she was promoted to the position of Cashier

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 Resolution6 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. 8 10, s. 1986, Par. A, 1.2 and Par. B; 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 10 appeal/request for clarification dated November 2, 1988. 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 11 filed by petitioner Anino; (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 12 clarification, respondent received a copy of PPA Special Order No. 492-88 dated October 21, 1988, also issued by General Manager Dayan. This PPA Order officially reassigned her to the position of Administrative Officer (SG15) 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, 13 respondent filed on November 25, 1988 a "precautionary appeal" 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 14 Administrative Officer dated October 1, 1988. 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. 95-2043 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 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
16 15

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 18 QUALIFICATION STANDARD. 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 OfficePPA.

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 22 placed at the mercy of abusive exercise of the appointing power. 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 23 initio." 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 24 during the period of his incumbency. 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.

"A. 1. Permanent Employee "x x x "1.2 Those presently occupying position with the same or comparable titles and duties and responsibilities as those in the approved staffing pattern; "x x x "B. Relative Fitness Where the number of incumbents to be replaced exceed the number of positions in the new staffing pattern, they shall be compared in terms of relative fitness and the most qualified and competent shall be preferred. In this respect, the following factors shall be considered: 1. Performance for the last two (2) years;

Footnotes
1

Filed under Rule 45 of the 1997 Rules of Civil Procedure, as amended.
2

Entitled "Julieta Monserate vs. The General Manager, Philippine Ports Authority and Ramon Anino."
3

Annex "F," Court of Appeals (CA) records, p. 231. Annex "C," CA Rollo, p. 28. Annex "F," ibid., p. 35.

4

5

2. Education and training;
6

Annex "K-1," ibid., p. 46. 3. Experience and outstanding accomplishment; and

CSC MC No. 5, s. 1988 (Supplemental Guidelines on Placement of Personnel in Reorganizing Agencies), Par. 3, provides: "x x x "3. All officials and employees, including those who have pending administrative charges, shall be evaluated on the basis of standards for retention/termination enumerated under MC 10, s. 1986. However, those with pending administrative cases shall not be placed in or appointed to positions higher than the positions held by them at the start of the reorganization, and the administrative cases against them shall be pursued until decided. Persons with derogatory information or prejudicial reports against them shall be given reasonable opportunity to rebut the same or present their side."
8 9

7

4. Physical characteristics and personality traits. "x x x" Annex "G," ibid., pp. 36-38. Annex "J," ibid., pp. 42-43. CA record, p. 219. Annex "H," CA Rollo pp. 39-40. Annex "M," ibid., pp. 49-50. Annex "S," CA records, p. 264. Annex "A," CA Rollo, pp. 22-24. Rollo. pp. 44-56.

10

11

12

13

CSC MC No. 10, s. 1986 (Guidelines on Placement of Personnel Affected by the 1986 Government Reorganization) Par. A, 1.2 and Par. B, provide: "x x x

14

15

16

17

SC Resolution dated July 13, 1998, Rollo, p. 132. Rollo, p. 23. Rollo pp. 51-52. 208 SCRA 240 (1992).

18

19

20

21

Mathay, Jr. vs. Court of Appeals, 320 SCRA 703 (1999) citing Apurillo vs. Civil Service Commission, 227 SCRA 230 (1993).
22

See Aquino vs. Civil Service Commission, supra.

23

Morata vs. Court of Appeals, 11 SCRA 42 (1964), cited in Aquino vs. Civil Service Commission, supra.
24

See Corpuz vs. Court of Appeals, 285 SCRA 23 (1998). Dimaandal vs. Commission on Audit, 291 SCRA 322 (1998). 20 SCRA 620 (1967). 194 SCRA 317 (1991).

ANTI-GRAFT LEAGUE OF THE PHILIPPINES, INC. and CRISPIN T. REYES, petitioners, vs. PHILIP ELLA C. JUICO, as Secretary of Agrarian Reform; CARLOS DOMINGUEZ, as Secretary of Agriculture; LOURDES QUISUMBING, as Secretary of Education, Culture and Sports; FULGENCIO FACTORAN, JR., as Secretary of Environment and Natural Resources; VICENTE V. JAYME, as Secretary of Finance; SEDFREY ORDOÑEZ, as Secretary of Justice; FRANKLIN N. DRILON, as Secretary of Labor and Employment; LUIS SANTOS, as Secretary of Local Government; FIDEL V. RAMOS, as Secretary of National Defense; TEODORO F. BENIGNO, as Press Secretary; JUANITO FERRER, as Secretary of Public Works and Highways; ANTONIO ARRIZABAL, as Secretary of Science and Technology; JOSE CONCEPCION, as Secretary of Trade and Industry; JOSE ANTONIO GONZALEZ, as Secretary of Tourism; ALFREDO R.A. BENGZON, as Secretary of Health; REINERIO D. REYES, as Secretary of Transportation and Communication; GUILLERMO CARAGUE, as Commissioner of the Budget; and SOLITA MONSOD, as Head of the National Economic Development Authority, respondents. Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in 83896. Antonio P. Coronel for petitioners in 83815.

25

26

27

The Lawphil Project - Arellano Law Foundation FERNAN, C.J.:p These two (2) petitions were consolidated per resolution dated August 9, 1988 1 and are being resolved jointly as both seek a declaration of the unconstitutionality of Executive Order No. 284 issued by President Corazon C. Aquino on July 25, 1987. The pertinent provisions of the assailed Executive Order are: Sec. 1. Even if allowed by law or by the ordinary functions of his position, a member of the Cabinet, undersecretary or assistant secretary or other appointive officials of the Executive Department may, in addition to his primary position, hold not more than two positions in the government and government corporations and receive the corresponding compensation therefor; Provided, that this limitation shall not apply to ad hoc bodies or committees, or to boards, councils or bodies of which the President is the Chairman.

Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 83896 February 22, 1991 CIVIL LIBERTIES UNION, petitioner, vs. THE EXECUTIVE SECRETARY, respondent. G.R. No. 83815 February 22, 1991

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive official of the Executive Department holds more positions than what is allowed in Section 1 hereof, they (sic) must relinquish the excess position in favor of the subordinate official who is next in rank, but in no case shall any official hold more than two positions other than his primary position. Sec. 3. In order to fully protect the interest of the government in government-owned or controlled corporations, at least one-third (1/3) of the members of the boards of such corporation should either be a secretary, or undersecretary, or assistant secretary. Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet, their undersecretaries and assistant secretaries to hold other government offices or positions in addition to their primary positions, albeit subject to the limitation therein imposed, runs counter to Section 13, Article VII of the 1987 Constitution, 2 which provides as follows: Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in this Constitution, hold any other office or employment during their tenure. They shall not, during said tenure, directly or indirectly practice any other profession, participate in any business, or be financially interested in any contract with, or in any franchise, or special privilege granted by the Government or any subdivision, agency, or instrumentality thereof, including governmentowned 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. 3 4 83815 and as Annex "B" in G.R. No. 83896 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 5 on July 23, 1987 Opinion No. 73, series of 1987, 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: 6 promulgated Executive Order No. 284. 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 7 8 example." Article IX-B, Section 7, par. (2) 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 governmentowned 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 11 words consonant to that reason and calculated to effect that purpose. 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 newlycreated 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 12 Pambansa. 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 13 ten (10) each. 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, VicePresident, 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 Vice15 President to become a member of the Cabinet, 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 17 of the instrument. 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 20 one which may make the words idle and nugatory. 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 22 required 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 23 and functions on said officials. 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 VicePresident, 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 24 Board. 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 exofficio 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 31 Rafael vs. Embroidery and Apparel Control and Inspection Board, 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 32 original appointments." 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 34 Communications acting as Chairman of the Maritime Industry Authority 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 36 required by the functions of his position," express reference to certain high37 ranking appointive public officials like members of the Cabinet were made. 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 39 on General Provisions. At that time, the article on the Civil Service 40 Commission had been approved on third reading on July 22, 1986, 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 reworded 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 44 understanding thereof. It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from holding during their tenure multiple offices or employment in the government, except in those cases specified in the Constitution itself and as above clarified with respect to posts held without additional compensation in an ex-officio capacity as provided by law and as required by the primary functions of their office, the citation of Cabinet members (then called Ministers) as examples during the debate and deliberation on the general rule laid down for all appointive officials should be considered as mere personal opinions which cannot override the constitution's manifest intent and the people' understanding thereof. In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2), Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is unconstitutional. Ostensibly restricting the number of positions that Cabinet members, undersecretaries or assistant secretaries may hold in addition to their primary position to not more than two (2) positions in the government and government corporations, Executive Order No. 284 actually allows them to hold multiple offices or employment in direct contravention of the express mandate of Section 13, Article VII of the 1987

Constitution prohibiting them from doing so, unless otherwise provided in the 1987 Constitution itself. The Court is alerted by respondents to the impractical consequences that will result from a strict application of the prohibition mandated under Section 13, Article VII on the operations of the Government, considering that Cabinet members would be stripped of their offices held in an ex-officio capacity, by reason of their primary positions or by virtue of legislation. As earlier clarified in this decision, ex-officio posts held by the executive official concerned without additional compensation as provided by law and as required by the primary functions of his office do not fall under the definition of "any other office" within the contemplation of the constitutional prohibition. With respect to other offices or employment held by virtue of legislation, including chairmanships or directorships in government-owned or controlled corporations and their subsidiaries, suffice it to say that the feared impractical consequences are more apparent than real. Being head of an executive department is no mean job. It is more than a full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum benefits are to be derived from a department head's ability and expertise, he should be allowed to attend to his duties and responsibilities without the distraction of other governmental offices or employment. He should be precluded from dissipating his efforts, attention and energy among too many positions of responsibility, which may result in haphazardness and inefficiency. Surely the advantages to be derived from this concentration of attention, knowledge and expertise, particularly at this stage of our national and economic development, far outweigh the benefits, if any, that may be gained from a department head spreading himself too thin and taking in more than what he can handle. Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders respondents Secretary of Environment and Natural Resources 45 Fulgencio Factoran, Jr., Secretary of Local Government 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 47 from all liability to pay any one for such services. Any per diem, allowances or other emoluments received by the respondents by virtue of actual services rendered in the questioned positions may therefore be retained by them. WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive Order No. 284 is hereby declared null and void and is accordingly set aside. SO ORDERED. Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado and Davide, Jr., JJ., concur. Sarmiento and Griño-Aquino, JJ., took no part.

Footnotes 1 P. 71, Rollo in G.R. No. 83815 and p. 28, Rollo in G.R. No. 83896. 2 Emphasis supplied. 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.

23 Martin v. Smith, 140 A.L.R. 1073; Ashmore v. Greater Greenville Sewer District, 173 A.L.R. 407. 24 Executive Order No. 16, May 9, 1986, 82 O.G. 2117.

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. 13 pp. 11-14. 14 Record of the 1986 Constitutional Commission, Vol. 1, p. 553. 15 Sec. 3, Ibid. 16 Sec. 7, Article VII. 17 Old Wayne Mut. Life Asso. vs. McDonough, 204 U.S. 8, 51 L Ed 345, 27 S Ct 236; Wallace vs. Payne, 197 Cal 539, 241 P. 879. 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. 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. 27 Black's Law Dictionary, p. 516; 15A Words and Phrases, p. 392. 28 15A Words and Phrases, p. 392. 29 Sec. 7, E.O. 778. 30 Sec. 1, E.O. 210. 31 21 SCRA 336 (1967). 32 Emphasis supplied. 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. 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 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:

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.

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 vicegovernor and that the designation of a temporary vicegovernor 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 ViceGovernor, 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 vicegovernor 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 ActingGovernor 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 ViceGovernor. 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 ViceGovernor 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 ViceGovernor 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 ViceGovernor 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 ViceGovernor. 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 ViceGovernor. 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 ViceGovernor. . . . 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 ViceGovernor 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 ViceGovernor 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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