ART XI

SECTION. 1 Public office is a public trust. Public officers and employees must, at all times, be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency; act with patriotism and justice, and lead modest lives.
Definitions
Public office
CREATION
ARTICLE IX
Section 1. The Constitutional Commissions, which shall be independent, are the Civil Service
Commission, the Commission on Elections, and the Commission on Audit.
R.A 7160 local government code
PUBLIC OFFICER
Art 203
Art. 203. Who are public officers. For the purpose of applying the provisions of this and the
preceding titles of this book, any person who, by direct provision of the law, popular election or
appointment by competent authority, shall take part in the performance of public functions in the
Government of the Philippine Islands, of shall perform in said Government or in any of its
branches public duties as an employee, agent or subordinate official, of any rank or class, shall
be deemed to be a public officer.
Republic Act No. 6713
AN ACT ESTABLISHING A CODE OF CONDUCT AND ETHICAL STANDARDS
FOR PUBLIC OFFICIALS AND EMPLOYEES, TO UPHOLD THE TIME-HONORED
PRINCIPLE OF PUBLIC OFFICE BEING A PUBLIC TRUST, GRANTING INCENTIVES
AND REWARDS FOR EXEMPLARY SERVICE, ENUMERATING PROHIBITED ACTS
AND TRANSACTIONS AND PROVIDING PENALTIES FOR VIOLATIONS THEREOF
AND FOR OTHER PURPOSES
Section 1. Title. - This Act shall be known as the "Code of Conduct and Ethical Standards for
Public Officials and Employees."

Section 2. Declaration of Policies. - It is the policy of the State to promote a high standard of
ethics in public service. Public officials and employees shall at all times be accountable to the
Comment [l1]: CREATION
Comment [l2]: R.A 7160
Comment [l3]: 203 RPC
Comment [l4]: R.A 6713
people and shall discharge their duties with utmost responsibility, integrity, competence, and
loyalty, act with patriotism and justice, lead modest lives, and uphold public interest over
personal interest.

Section 3. Definition of Terms. - As used in this Act, the term:

(a) "Government" includes the National Government, the local governments, and all other
instrumentalities, agencies or branches of the Republic of the Philippines including government-
owned or controlled corporations, and their subsidiaries.

(b) "Public Officials" includes 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.

(c) "Gift" refers to a thing or a right to dispose of gratuitously, or any act or liberality, in favor
of another who accepts it, and shall include a simulated sale or an ostensibly onerous disposition
thereof. It shall not include an unsolicited gift of nominal or insignificant value not given in
anticipation of, or in exchange for, a favor from a public official or employee.

(d) "Receiving any gift" includes the act of accepting directly or indirectly, a gift from a
person other than a member of his family or relative as defined in this Act, even on the occasion
of a family celebration or national festivity like Christmas, if the value of the gift is neither
nominal nor insignificant, or the gift is given in anticipation of, or in exchange for, a favor.

(e) "Loan" covers both simple loan and commodatum as well as guarantees, financing
arrangements or accommodations intended to ensure its approval.

(f) "Substantial stockholder" means any person who owns, directly or indirectly, shares of
stock sufficient to elect a director of a corporation. This term shall also apply to the parties to a
voting trust.

(g) "Family of public officials or employees" means their spouses and unmarried children
under eighteen (18) years of age.

(h) "Person" includes natural and juridical persons unless the context indicates otherwise.

(i) "Conflict of interest" arises when a public official or employee is a member of a board, an
officer, or a substantial stockholder of a private corporation or owner or has a substantial interest
in a business, and the interest of such corporation or business, or his rights or duties therein, may
be opposed to or affected by the faithful performance of official duty.

(j) "Divestment" is the transfer of title or disposal of interest in property by voluntarily,
completely and actually depriving or dispossessing oneself of his right or title to it in favor of a
person or persons other than his spouse and relatives as defined in this Act.

(k) "Relatives" refers to any and all persons related to a public official or employee within the
fourth civil degree of consanguinity or affinity, including bilas, inso and balae.

Section 4. Norms of Conduct of Public Officials and Employees. - (A) Every public official and
employee shall observe the following as standards of personal conduct in the discharge and
execution of official duties:

(a) Commitment to public interest. - Public officials and employees shall always uphold the
public interest over and above personal interest. All government resources and powers of their
respective offices must be employed and used efficiently, effectively, honestly and economically,
particularly to avoid wastage in public funds and revenues.

(b) Professionalism. - Public officials and employees shall perform and discharge their
duties with the highest degree of excellence, professionalism, intelligence and skill. They shall
enter public service with utmost devotion and dedication to duty. They shall endeavor to
discourage wrong perceptions of their roles as dispensers or peddlers of undue patronage.

(c) Justness and sincerity. - Public officials and employees shall remain true to the people at
all times. They must act with justness and sincerity and shall not discriminate against anyone,
especially the poor and the underprivileged. They shall at all times respect the rights of others,
and shall refrain from doing acts contrary to law, good morals, good customs, public policy,
public order, public safety and public interest. They shall not dispense or extend undue favors on
account of their office to their relatives whether by consanguinity or affinity except with respect
to appointments of such relatives to positions considered strictly confidential or as members of
their personal staff whose terms are coterminous with theirs.

(d) Political neutrality. - Public officials and employees shall provide service to everyone
without unfair discrimination and regardless of party affiliation or preference.

(e) Responsiveness to the public. - Public officials and employees shall extend prompt,
courteous, and adequate service to the public. Unless otherwise provided by law or when
required by the public interest, public officials and employees shall provide information of their
policies and procedures in clear and understandable language, ensure openness of information,
public consultations and hearings whenever appropriate, encourage suggestions, simplify and
systematize policy, rules and procedures, avoid red tape and develop an understanding and
appreciation of the socio-economic conditions prevailing in the country, especially in the
depressed rural and urban areas.

(f) Nationalism and patriotism. - Public officials and employees shall at all times be loyal to
the Republic and to the Filipino people, promote the use of locally produced goods, resources
and technology and encourage appreciation and pride of country and people. They shall endeavor
to maintain and defend Philippine sovereignty against foreign intrusion.

(g) Commitment to democracy. - Public officials and employees shall commit themselves to
the democratic way of life and values, maintain the principle of public accountability, and
manifest by deeds the supremacy of civilian authority over the military. They shall at all times
uphold the Constitution and put loyalty to country above loyalty to persons or party.

(h) Simple living. - Public officials and employees and their families shall lead modest lives
appropriate to their positions and income. They shall not indulge in extravagant or ostentatious
display of wealth in any form.

(B) The Civil Service Commission shall adopt positive measures to promote (1) observance of
these standards including the dissemination of information programs and workshops authorizing
merit increases beyond regular progression steps, to a limited number of employees recognized
by their office colleagues to be outstanding in their observance of ethical standards; and (2)
continuing research and experimentation on measures which provide positive motivation to
public officials and employees in raising the general level of observance of these standards.

Section 5. Duties of Public Officials and Employees. - In the performance of their duties, all
public officials and employees are under obligation to:

(a) Act promptly on letters and requests. - All public officials and employees shall, within
fifteen (15) working days from receipt thereof, respond to letters, telegrams or other means of
communications sent by the public. The reply must contain the action taken on the request.

(b) Submit annual performance reports. - All heads or other responsible officers of offices and
agencies of the government and of government-owned or controlled corporations shall, within
forty-five (45) working days from the end of the year, render a performance report of the agency
or office or corporation concerned. Such report shall be open and available to the public within
regular office hours.

(c) Process documents and papers expeditiously. - All official papers and documents must be
processed and completed within a reasonable time from the preparation thereof and must contain,
as far as practicable, not more than three (3) signatories therein. In the absence of duly
authorized signatories, the official next-in-rank or officer in charge shall sign for and in their
behalf.

(d) Act immediately on the public's personal transactions. - All public officials and employees
must attend to anyone who wants to avail himself of the services of their offices and must, at all
times, act promptly and expeditiously.

(e) Make documents accessible to the public. - All public documents must be made accessible
to, and readily available for inspection by, the public within reasonable working hours.

Section 6. System of Incentives and Rewards. - A system of annual incentives and rewards is
hereby established in order to motivate and inspire public servants to uphold the highest
standards of ethics. For this purpose, a Committee on Awards to Outstanding Public Officials
and Employees is hereby created composed of the following: the Ombudsman and Chairman of
the Civil Service Commission as Co-Chairmen, and the Chairman of the Commission on Audit,
and two government employees to be appointed by the President, as members.

It shall be the task of this Committee to conduct a periodic, continuing review of the
performance of public officials and employees, in all the branches and agencies of Government
and establish a system of annual incentives and rewards to the end that due recognition is given
to public officials and employees of outstanding merit on the basis of the standards set forth in
this Act.

The conferment of awards shall take into account, among other things, the following: the years
of service and the quality and consistency of performance, the obscurity of the position, the level
of salary, the unique and exemplary quality of a certain achievement, and the risks or temptations
inherent in the work. Incentives and rewards to government officials and employees of the year
to be announced in public ceremonies honoring them may take the form of bonuses, citations,
directorships in government-owned or controlled corporations, local and foreign scholarship
grants, paid vacations and the like. They shall likewise be automatically promoted to the next
higher position with the commensurate salary suitable to their qualifications. In case there is no
next higher position or it is not vacant, said position shall be included in the budget of the office
in the next General Appropriations Act. The Committee on Awards shall adopt its own rules to
govern the conduct of its activities.

Section 7. Prohibited Acts and Transactions. - In addition to acts and omissions of public
officials and employees now prescribed in the Constitution and existing laws, the following shall
constitute prohibited acts and transactions of any public official and employee and are hereby
declared to be unlawful:

(a) Financial and material interest. - Public officials and employees shall not, directly or
indirectly, have any financial or material interest in any transaction requiring the approval of
their office.

(b) Outside employment and other activities related thereto. - Public officials and employees
during their incumbency shall not:

(1) Own, control, manage or accept employment as officer, employee, consultant, counsel,
broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by
their office unless expressly allowed by law;

(2) Engage in the private practice of their profession unless authorized by the Constitution
or law, provided, that such practice will not conflict or tend to conflict with their official
functions; or

(3) Recommend any person to any position in a private enterprise which has a regular or
pending official transaction with their office.

These prohibitions shall continue to apply for a period of one (1) year after resignation,
retirement, or separation from public office, except in the case of subparagraph (b) (2) above, but
the professional concerned cannot practice his profession in connection with any matter before
the office he used to be with, in which case the one-year prohibition shall likewise apply.

(c) Disclosure and/or misuse of confidential information. - Public officials and employees
shall not use or divulge, confidential or classified information officially known to them by reason
of their office and not made available to the public, either:

(1) To further their private interests, or give undue advantage to anyone; or

(2) To prejudice the public interest.

(d) Solicitation or acceptance of gifts. - Public officials and employees shall not solicit or
accept, directly or indirectly, any gift, gratuity, favor, entertainment, loan or anything of
monetary value from any person in the course of their official duties or in connection with any
operation being regulated by, or any transaction which may be affected by the functions of their
office.

As to gifts or grants from foreign governments, the Congress consents to:

(i) The acceptance and retention by a public official or employee of a gift of nominal value
tendered and received as a souvenir or mark of courtesy;

(ii) The acceptance by a public official or employee of a gift in the nature of a scholarship
or fellowship grant or medical treatment; or

(iii) The acceptance by a public official or employee of travel grants or expenses for travel
taking place entirely outside the Philippine (such as allowances, transportation, food, and lodging)
of more than nominal value if such acceptance is appropriate or consistent with the interests of
the Philippines, and permitted by the head of office, branch or agency to which he belongs.

The Ombudsman shall prescribe such regulations as may be necessary to carry out the purpose
of this subsection, including pertinent reporting and disclosure requirements.

Nothing in this Act shall be construed to restrict or prohibit any educational, scientific or
cultural exchange programs subject to national security requirements.

Section 8. Statements and Disclosure. - Public officials and employees have an obligation to
accomplish and submit declarations under oath of, and the public has the right to know, their
assets, liabilities, net worth and financial and business interests including those of their spouses
and of unmarried children under eighteen (18) years of age living in their households.

(A) Statements of Assets and Liabilities and Financial Disclosure. - All public officials and
employees, except those who serve in an honorary capacity, laborers and casual or temporary
workers, shall file under oath their Statement of Assets, Liabilities and Net Worth and a
Disclosure of Business Interests and Financial Connections and those of their spouses and
unmarried children under eighteen (18) years of age living in their households.

The two documents shall contain information on the following:

(a) real property, its improvements, acquisition costs, assessed value and current fair market
value;

(b) personal property and acquisition cost;

(c) all other assets such as investments, cash on hand or in banks, stocks, bonds, and the like;

(d) liabilities, and;

(e) all business interests and financial connections.
The documents must be filed:

(a) within thirty (30) days after assumption of office;

(b) on or before April 30, of every year thereafter; and

(c) within thirty (30) days after separation from the service.
All public officials and employees required under this section to file the aforestated documents
shall also execute, within thirty (30) days from the date of their assumption of office, the
necessary authority in favor of the Ombudsman to obtain from all appropriate government
agencies, including the Bureau of Internal Revenue, such documents as may show their assets,
liabilities, net worth, and also their business interests and financial connections in previous years,
including, if possible, the year when they first assumed any office in the Government.

Husband and wife who are both public officials or employees may file the required statements
jointly or separately.

The Statements of Assets, Liabilities and Net Worth and the Disclosure of Business Interests
and Financial Connections shall be filed by:

(1) Constitutional and national elective officials, with the national office of the Ombudsman;

(2) Senators and Congressmen, with the Secretaries of the Senate and the House of
Representatives, respectively; Justices, with the Clerk of Court of the Supreme Court; Judges,
with the Court Administrator; and all national executive officials with the Office of the President.

(3) Regional and local officials and employees, with the Deputy Ombudsman in their
respective regions;

(4) Officers of the armed forces from the rank of colonel or naval captain, with the Office of
the President, and those below said ranks, with the Deputy Ombudsman in their respective
regions; and

(5) All other public officials and employees, defined in Republic Act No. 3019, as amended,
with the Civil Service Commission.

(B) Identification and disclosure of relatives. - It shall be the duty of every public official or
employee to identify and disclose, to the best of his knowledge and information, his relatives in
the Government in the form, manner and frequency prescribed by the Civil Service Commission.

(C) Accessibility of documents. - (1) Any and all statements filed under this Act, shall be made
available for inspection at reasonable hours.

(2) Such statements shall be made available for copying or reproduction after ten (10) working
days from the time they are filed as required by law.

(3) Any person requesting a copy of a statement shall be required to pay a reasonable fee to
cover the cost of reproduction and mailing of such statement, as well as the cost of certification.

(4) Any statement filed under this Act shall be available to the public for a period of ten (10)
years after receipt of the statement. After such period, the statement may be destroyed unless
needed in an ongoing investigation.

(D) Prohibited acts. - It shall be unlawful for any person to obtain or use any statement filed
under this Act for:

(a) any purpose contrary to morals or public policy; or

(b) any commercial purpose other than by news and communications media for dissemination
to the general public.

Section 9. Divestment. - A public official or employee shall avoid conflicts of interest at all times.
When a conflict of interest arises, he shall resign from his position in any private business
enterprise within thirty (30) days from his assumption of office and/or divest himself of his
shareholdings or interest within sixty (60) days from such assumption.

The same rule shall apply where the public official or employee is a partner in a partnership.

The requirement of divestment shall not apply to those who serve the Government in an
honorary capacity nor to laborers and casual or temporary workers.

Section 10. Review and Compliance Procedure. - (a) The designated Committees of both Houses
of the Congress shall establish procedures for the review of statements to determine whether said
statements which have been submitted on time, are complete, and are in proper form. In the
event a determination is made that a statement is not so filed, the appropriate Committee shall so
inform the reporting individual and direct him to take the necessary corrective action.

(b) In order to carry out their responsibilities under this Act, the designated Committees of
both Houses of Congress shall have the power within their respective jurisdictions, to render any
opinion interpreting this Act, in writing, to persons covered by this Act, subject in each instance
to the approval by affirmative vote of the majority of the particular House concerned.

The individual to whom an opinion is rendered, and any other individual involved in a similar
factual situation, and who, after issuance of the opinion acts in good faith in accordance with it
shall not be subject to any sanction provided in this Act.

(c) The heads of other offices shall perform the duties stated in subsections (a) and (b) hereof
insofar as their respective offices are concerned, subject to the approval of the Secretary of
Justice, in the case of the Executive Department and the Chief Justice of the Supreme Court, in
the case of the Judicial Department.

Section 11. Penalties. - (a) Any public official or employee, regardless of whether or not he holds
office or employment in a casual, temporary, holdover, permanent or regular capacity,
committing any violation of this Act shall be punished with a fine not exceeding the equivalent
of six (6) months' salary or suspension not exceeding one (1) year, or removal depending on the
gravity of the offense after due notice and hearing by the appropriate body or agency. If the
violation is punishable by a heavier penalty under another law, he shall be prosecuted under the
latter statute. Violations of Sections 7, 8 or 9 of this Act shall be punishable with imprisonment
not exceeding five (5) years, or a fine not exceeding five thousand pesos (P5,000), or both, and,
in the discretion of the court of competent jurisdiction, disqualification to hold public office.

(b) Any violation hereof proven in a proper administrative proceeding shall be sufficient cause
for removal or dismissal of a public official or employee, even if no criminal prosecution is
instituted against him.

(c) Private individuals who participate in conspiracy as co-principals, accomplices or
accessories, with public officials or employees, in violation of this Act, shall be subject to the
same penal liabilities as the public officials or employees and shall be tried jointly with them.

(d) The official or employee concerned may bring an action against any person who obtains or
uses a report for any purpose prohibited by Section 8 (D) of this Act. The Court in which such
action is brought may assess against such person a penalty in any amount not to exceed twenty-
five thousand pesos (P25,000). If another sanction hereunder or under any other law is heavier,
the latter shall apply.

Section 12. Promulgation of Rules and Regulations, Administration and Enforcement of this Act.
- The Civil Service Commission shall have the primary responsibility for the administration and
enforcement of this Act. It shall transmit all cases for prosecution arising from violations of this
Act to the proper authorities for appropriate action: Provided, however, That it may institute such
administrative actions and disciplinary measures as may be warranted in accordance with law.
Nothing in this provision shall be construed as a deprivation of the right of each House of
Congress to discipline its Members for disorderly behavior.

The Civil Service Commission is hereby authorized to promulgate rules and regulations
necessary to carry out the provisions of this Act, including guidelines for individuals who render
free voluntary service to the Government. The Ombudsman shall likewise take steps to protect
citizens who denounce acts or omissions of public officials and employees which are in violation
of this Act.

Section 13. Provisions for More Stringent Standards. - Nothing in this Act shall be construed to
derogate from any law, or any regulation prescribed by any body or agency, which provides for
more stringent standards for its official and employees.

Section 14. Appropriations. - The sum necessary for the effective implementation of this Act
shall be taken from the appropriations of the Civil Service Commission. Thereafter, such sum as
may be needed for its continued implementation shall be included in the annual General
Appropriations Act.

Section 15. Separability Clause. - If any provision of this Act or the application of such provision
to any person or circumstance is declared invalid, the remainder of the Act or the application of
such provision to other persons or circumstances shall not be affected by such declaration.

Section 16. Repealing Clause. - All laws, decrees and orders or parts thereof inconsistent
herewith, are deemed repealed or modified accordingly, unless the same provide for a heavier
penalty.

Section 17. Effectivity. - This Act shall take effect after thirty (30) days following the
completion of its publication in the Official Gazette or in two (2) national newspapers of general
circulation.

DEFACTO OFFICERS
TORRES VS RIBO

G.R. No. L-2051 May 21, 1948
BERNARDO TORRES
vs.
MAMERTO S. RIBO and ALEJANDRO BALDERIAN,

Facts:
Bernardo Torres, Mamerto Ribo and Alejandro Balderian were the gubernatorial candidates of
Leyte in the 1947 election. Mamerto Ribo was then the incumbent governor while the two other
candidates were members of the provincial board. Under Sec. 158 of the Revised Election Code,
Comment [l5]: 1
st
case
they were supposed so sit as members of the Provincial Board of Canvassers but since they were
candidates, they were thus disqualified to sit therein. Pursuant to Sec. 158 of the same code, the
COMELEC, thru a telegram dated November 20
th
, sent to the provincial treasurer who received
the telegram on the 21
st
, appointed the division schools superintendent, the district engineer as
well as the district health officer to replace the disqualified PBC members. It was indicated that
they could assume the posts as soon as they receive their appointment. Unfortunately, the
division schools superintendent and the district engineer were not able to receive the
appointment as they were in the other part of the province until the 24
th
.

Meanwhile, on November 22, the provincial treasurer, the provincial fiscal, the acting district
health officer, the chief clerk of the division superintendent of schools as well as the assistant
civil engineer in the district engineers office canvassed the votes for the provincial governor and
the other officials and then proclaimed Ribo as the duly elected governor. On the 24
th
the PBC
convened again but this time, the district engineer and the division schools superintendent
attended after canvassing the votes, they declared Ribo as the winning candidate. The issue of
whether the chief clerk of the division superintendent of schools and the assistant civil engineer
in the district engineers office were lawful members of the PBC. The first trial judge who
handled the case held they were not but the second judge to which the case was transferred
answered in the affirmative saying that it would be absurd it they would not be considered as
being authorized by their superiors considering their respective positions.

1
st
Issue: WON the two may be considered as lawful members of the PBC.

Held: No. There is no evidence to show that they were authorized by their respective superiors
to represent them in the canvassing of votes. And even if they were indeed authorized, it would
not make them lawful members of the PBC. The law expressly mandates who are the qualified
members of the PBC and it also provided those who can be substitute members in case of
disqualification. The enumeration is exclusive and no other person can be appointed as such. The
appointment of a substitute member is personal and restricted and his powers must be performed
directly and in person by the appointee. An officer to whom 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 exercise quasi-judicial functions, such as the function
and duty to determine whether the papers transmitted to them are genuine election returns signed
by the proper officers.

2
nd
Issue: Whether the two could at least be deemed as de facto officers

Held: No. 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. 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.


QUALIFICATIONS OF PUBLIC OFFICE
CITIZENSHIP REQUIREMENT
G.R. No. 87193 June 23, 1989

JUAN GALLANOSA FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON
CHAPTER, HEREIN REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE,
respondents.

Facts:
Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on 22 January 1988,
and assumed office in due time. On 27 October 1988, the league of Municipalities, Sorsogon
Chapter represented by its President, Salvador Estuye, who was also suing in his personal
capacity, filed with the Comelec a petition for the annulment of Frivaldos election and
proclamation on the ground that he was not a Filipino citizen, having been naturalized in the
United States on 20 January 1983. Frivaldo admitted that he was naturalized in the United States
as alleged but pleaded the special and affirmative defenses that he had sought American
citizenship only to protect himself against President Marcos. His naturalization, he said, was
merely forced upon himself as a means of survival against the unrelenting persecution by the
Martial Law Dictators agents abroad. He also argued that the challenge to his title should be
dismissed, being in reality a quo warranto petition that should have been filed within 10 days
from his proclamation, in accordance with Section 253 of the Omhibus Election Code.

Issue:
Whether Juan G. Frivaldo was a citizen of the Philippines at the time of his election on 18
January 1988, as provincial governor of Sorsogon.

Held:
The Commission on Elections has the primary jurisdiction over the question as the sole judge of
all contests relating to the election, returns and qualifications of the members of the Congress
and elective provincial and city officials. However, the decision on Frivaldos citizenship has
already been made by the COMELEC through its counsel, the Solicitor General, who
categorically claims that Frivaldo is a foreigner. The Solicitors stance is assumed to have bben
taken by him after consultation with COMELEC and with its approval. It therefore represents the
Comment [l6]: 2
nd
case FRIVALDO VS COMELEC
decision of the COMELEC itself that the Supreme Court may review. In the certificate of
candidacy filed on 19 November 1987, Frivaldo described himself as a natural-born citizen of
the Philippines, omitting mention of any subsequent loss of such status. The evidence shows,
however, that he was naturalized as a citizen of the United States in 1983 per the certification
from the United States District Court, Northern District of California, as duly authenticated by
Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco, California,
U.S.A. There were many other Filipinos in the United States similarly situated as Frivaldo, and
some of them subject to greater risk than he, who did not find it necessary nor do they claim
to have been coerced to abandon their cherished status as Filipinos. Still, if he really wanted
to disavow his American citizenship and reacquire Philippine citizenship, Frivaldo should have
done so in accordance with the laws of our country. Under CA No. 63 as amended by CA No.
473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by
naturalization, or by repatriation. He failed to take such categorical acts. Rhe anomaly of a
person sitting as provincial governor in this country while owing exclusive allegiance to another
country cannot be permitted. The fact that he was elected by the people of Sorsogon does not
excuse this patent violation of the salutary rule limiting public office and employment only to the
citizens of this country. The will of the people as expressed through the ballot cannot cure the
vice of ineligibilityQualifications for public office are continuing requirements and must be
possessed not only at the time of appointment or election or assumption of office but during the
officers entire tenure. Once any of the required qualifications is lost, his title may be seasonably
challenged. Frivaldo is disqualified from serving as governor of Sorsogon.G.R. No. 86564
August 1, 1989

RAMON L. LABO, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS L. LARDIZABAL,
respondents

In 1988, Ramon Labo, Jr. was elected as mayor of Baguio City. His rival, Luis Lardizabal filed a
petition for quo warranto against Labo as Lardizabal asserts that Labo is an Australian citizen
hence disqualified; that he was naturalized as an Australian after he married an Australian. Labo
avers that his marriage with an Australian did not make him an Australian; that at best he has
dual citizenship, Australian and Filipino; that even if he indeed became an Australian when he
married an Australian citizen, such citizenship was lost when his marriage with the Australian
was later declared void for being bigamous. Labo further asserts that even if hes considered as
an Australian, his lack of citizenship is just a mere technicality which should not frustrate the
will of the electorate of Baguio who voted for him by a vast majority.
ISSUES:
Comment [l7]: 3
rd
case - LABO VS COMELEC
1. Whether or not Labo can retain his public office.
2. Whether or not Lardizabal, who obtained the second highest vote in the mayoralty race, can
replace Labo in the event Labo is disqualified.
HELD: 1. No. Labo did not question the authenticity of evidence presented against him. He was
naturalized as an Australian in 1976. It was not his marriage to an Australian that made him an
Australian. It was his act of subsequently swearing by taking an oath of allegiance to the
government of Australia. He did not dispute that he needed an Australian passport to return to
the Philippines in 1980; and that he was listed as an immigrant here. It cannot be said also that he
is a dual citizen. Dual allegiance of citizens is inimical to the national interest and shall be dealt
with by law. He lost his Filipino citizenship when he swore allegiance to Australia. He cannot
also claim that when he lost his Australian citizenship, he became solely a Filipino. To restore
his Filipino citizenship, he must be naturalized or repatriated or be declared as a Filipino through
an act of Congress none of this happened.
Labo, being a foreigner, cannot serve public office. His claim that his lack of citizenship should
not overcome the will of the electorate is not tenable. The people of Baguio could not have, even
unanimously, changed the requirements of the Local Government Code and the Constitution
simply by electing a foreigner (curiously, would Baguio have voted for Labo had they known he
is Australian). The electorate had no power to permit a foreigner owing his total allegiance to the
Queen of Australia, or at least a stateless individual owing no allegiance to the Republic of the
Philippines, to preside over them as mayor of their city. Only citizens of the Philippines have that
privilege over their countrymen.
2. Lardizabal on the other hand cannot assert, through the quo warranto proceeding, that he
should be declared the mayor by reason of Labos disqualification because Lardizabal obtained
the second highest number of vote. It would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who has not acquired the majority or
plurality of votes is proclaimed a winner and imposed as the representative of a constituency, the
majority of which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in all
republican forms of government that no one can be declared elected and no measure can be
declared carried unless he or it receives a majority or plurality of the legal votes cast in the
election.

KILOSBAYAN VS EXECUTIVE SECRETARY
Only natural-born Filipino citizens may be appointed as justice of the Supreme Court
Decision of administrative body (Bureau of Immigration) declaring one a natural-born citizen is
not binding upon the courts when there are circumstances that entail factual assertions that need
to be threshed out in proper judicial proceedings



FACTS:

This case arose when respondent Gregory S. Ong was appointed by Executive Secretary, in
representation of the Office of the President, as Associate Justice of the Supreme Court.
Petitioners contended that respondent Ong is a Chinese citizen, born on May 25, 1953 to Chinese
parents. They further added that even if it were granted that eleven years afterrespondent Ongs
birth, his father was finally granted Filipino citizenship by naturalization, that, by itself, would
not makerespondent Ong a natural-born citizen. For his part, respondent Ong contended that he
is a natural-born citizen and presented a certification from the Bureau of Immigration and the
DOJ declaring him to be such.

ISSUE:


Whether or not respondent Ong is a natural-born Filipino citizen

RULING:

xxx respondent Ong is a naturalized Filipino citizen. The alleged subsequent recognition of his
natural-born status by the Bureau of Immigration and the DOJ cannot amend the final decision of
the trial court stating that respondent Ong and his mother were naturalized along with his father.

The series of events and long string of alleged changes in the nationalities of respondent Ong's
ancestors, by various births, marriages and deaths, all entail factual assertions that need to be
threshed out in proper judicial proceedings so as to correct the existing records on his birth
and citizenship. The chain of evidence would have to show that Dy Guiok
Santos, respondent Ong's mother, was a Filipino citizen, contrary to what still appears in the
records of this Court.Respondent Ong has the burden of proving in court his alleged ancestral
tree as well as his citizenship under the time-line of three Constitutions. Until this is
Comment [l8]: 4
th
CASE KILOSBAYAN VS EXEC
SECRETARY 2007
done, respondent Ong cannot accept an appointment to this Court as that would be a violation of
the Constitution. For this reason, he can be prevented by injunction from doing so.
REQUIRED ACTS TO BE PERFORMED
-effect or refusal to take the oath of office (sec. 11, BP 881)
OMNIBUS ELECTION CODE OF THE PHILIPPINES
Section 11 Failure to assume office. - The office of any official elected who fails or refuses to
take his oath of office within six months from his proclamation shall be considered vacant,
unless said failure is for a cause or causes beyond his control
CORPUZ VS CA
FIRST DIVISION

[G.R. No. 123989. January 26, 1998]

ATTY. DAVID B. CORPUZ, petitioner, vs. COURT OF APPEALS, and MOVIE AND
TELEVISION REVIEW ANDCLASSIFICATION BOARD, respondents.

D E C I S I O N

DAVIDE, JR., J.:

Petitioner Atty. David Corpuz (hereafter CORPUZ) asks us to set aside the 13 October 1995
decision of the Court of Appeals in CA-G.R. SP-No. 37694[1] which reversed Resolution No.
93-5964 of the Civil Service Commission (CSC),[2] the latter declaring that petitioners
separation from the service as Attorney V in the Movie Television Review Board (MTRCB) was
not in order and directed that he be automatically restored to his position.

The pleadings of the parties, the decision of the Court of Appeals and the Resolution of the CSC
disclose the following facts:
Comment [l9]: BP 881
Comment [l10]: 5
th
case - CORPUZ VS CA

On 18 July 1986, CORPUZ was appointed as the MTRCBs legal Counsel -- Prosecutor and
Investigation Services (Supervising Legal Staff Officer).[3] The appointment was approved by
Asst. Regional Director Benita Santos of the CSC-National Capital Region. Subsequently,
CORPUZ position was designated Attorney V under the Salary Standardization Law.

As MTRCB Legal Counsel, CORPUZ duties included attendance in Board meetings pursuant
to then Chairman Moratos memorandum of 11 September 1987.[4]

Sometime in August 1991, the MTRCB passed MTRCB Resolution No. 8-1-91[5] entitled An
Act To Declare The Appointments Of The Administrative And Subordinate Employees Of This
Board As Null And Void. This undated resolution noted that the past and present Chairmen of
the MTRCB had failed to submit for approval the appointments of administrative and
subordinate employees to the MTRCB before forwarding them to the CSC, in violation of
Section 5 of P.D. No. 876-A, and later, P.D. No. 1986.[6] It thus declared:

FOR ALL OF THE FOREGOING, this Board, in Session Assembled, hereby declare[s] that
ALL the appointments of the present administrative and subordinate employees of this Board
suffers [sic] from illegality and therefore [are] considered invalid and of no value and effect ab
initio.

IT IS THEREFORE RESOLVED, AS IT IS HEREBY RESOLVED BY THIS BOARD, that the
Chairman recommend to this Board, the appointment of all or some of the present administrative
and subordinate employees of this Board, or new ones, at his initiative, discretion and preference,
including the category of the position for which the appointees [are] recommended, within a
period of ONE MONTH from the approval of this Resolution;

IT IS FURTHER RESOLVED, that in the interregnum, and in order not to disrupt the workings
and functions of this Board while this body is awaiting for [sic] the recommendation of the
appointments of the old and or new appointees, the present administrative and subordinate
employees shall hold on [to] their position[s] in an [sic] holdover capacity.

As certified by MTRCB Secretary Vicente G. Sales,[7] Resolution No. 8-1-91 was filed in his
office on 1 August 1991, while Resolution No. 10-2-91, a mere reiteration of Resolution No. 8-
1-91, was approved by the MTRCB en banc on 9 October 1991. No copy of Resolution No. 10-
2-91, however, was found in the records.

CORPUZ was unaware of the promulgation of Resolution No. 8-1-91 as he was then on leave.
The Resolution was likewise kept secret and it was only on 12 March 1993 that an
announcement[8] of its contents was posted by an Ad Hoc Committee on the MTRCB bulletin
board. This announcement invited the submission of any information concerning the
appointments involved therein to the Committee. It appears, however, that nothing was
immediately done to implement Resolution No. 8-1-91.

On 14 July 1992, Henrietta S. Mendez was appointed MTRCB Chairman. Thereafter, new
members of the Board were likewise appointed with Mendez assuming office in August 1992.

At the MTRCB meeting of 19 January 1993, Mendez was informed about Resolution No. 8-1-91.
An Ad Hoc Committee composed of MTRCB members was then constituted to look into the
appointments extended by former Chairman Morato, as well as the qualifications of the
appointees. The Committee then posted on the MTRCB bulletin board the 12 March 1993
announcement mentioned above.

Thereafter, the Committee resolved to recommend to the MTRCB the approval of the
appointments, except that of CORPUZ and seven others.

In a Memorandum[9] dated 28 June 1993, Mendez informed CORPUZ that at the MTRCB
regular meeting of 25 June 1993, his appointment was disapproved effective 30 June 1993.
None of the parties attached to their pleadings a copy of the MTRCB Resolution disapproving
the appointment.

On 27 July 1993, CORPUZ and one Larry Rigor filed a complaint with the CSC requesting a
formal investigation and hearing. In her comment to the complaint, Mendez stated that she
discovered that the appointments extended by Morato were not submitted to the MTRCB for
approval pursuant to Section 5(c) of P.D. No. 1986; hence to cure the defect, she submitted the
appointments to the MTRCB.

On 31 August 1993, the CSC promulgated Resolution No. 93-3509 granting the MTRCB
authority to fill up positions vacated in the agency due to appointments which were not
submitted to the MTRCB for approval.[10]

However, in Resolution No. 93-5964[11] dated 23 December 1993, the CSC ruled in favor of
CORPUZ, as follows:

It must be appreciated that the appointment of Atty. Corpuz was approved by the Commission
because it was signed by Mr. Manuel Morato, then Chairman of [the] MTRCB and the duly
authorized signatory of MTRCB appointments. All the appointments signed by Mr. Morato in
his capacity as MTRCB Chairman are presumed to have been made after complying with all the
legal requirements including the Board approval, whether express or implied.

The appointment of Atty. Corpuz, if defective, could have been the subject of a direct action for
revocation or recall which may be brought to the Commission within a reasonable period of time
after its approval Since no such action was filed with the Commission, we can safely state that
Corpuz had already acquired security of tenure in the said position. Hence, the Commission can
not allow the current Boards disapproval of the said appointment to produce any effect. Atty.
Corpuz can no longer be separated from the service except for cause and after observing the
requirements of due process.

WHEREFORE, foregoing premises considered, the Commission hereby resolves to rule that the
separation of Mr. David Corpuz from the service is not in order. Accordingly, he is
automatically restored to his position of Atty. V with payment of back salaries.

The MTRCBs motion for reconsideration was denied by the CSC in Resolution No. 94-2551[12]
dated 20 June 1994.

In the meantime, specifically on 22 August 1994, CORPUZ became a permanent employee of
the Ombudsman.[13]

The MTRCB filed with us a special civil action for certiorari which we referred to the Court of
Appeals in view of Republic Act No. 7902.[14] The Court of Appeals then docketed the case as
CA-G.R. SP No. 37694.

In its decision, the Court of Appeals declared null and void Resolution No. 93-5964 of the CSC,
ruling that since the appointment of CORPUZ was not approved by the MTRCB, the
appointment was invalid and he could not invoke security of tenure. In support of its ruling, the
Court of Appeals held:

Presidential Decree No. 1986, the law creating the Movie and Television Review and
Classification Board, specifically provides as follows:

Section 16. Organization Patterns; Personnel. -- The Board shall determine its organizational
structure and staffing pattern. It shall have the power to suspend or dismiss for cause any
employee and/or approve or disapprove the appointment, transfer or detail of employees. It shall
appoint the Secretary of the Board who shall be the official custodian of the records of the
meetings of the Board and who shall perform such other duties and functions as directed by the
Board. (Underscoring supplied)

The record shows that the appointment of respondent Atty. David Corpuz was not approved by
the Board, as mandated by Presidential Decree No. 1986, Section 16.

The Supreme Court, in a similar case has reiterated the importance of complying with legal
requirements for a valid appointment. In Tomali vs. Civil Service Commission (238 SCRA 572),
it held:

Compliance with the legal requirements for an appointment to a civil service position is
essential in order to make it fully effective (Favis vs. Rupisan, 17 SCRA 190, cited in Mitra vs.
Subido, 21 SCRA 127). Without the favorable certification or approval of the Commission, in
cases when such an approval is required, no title to the office can yet be deemed to be permanent;
vested in favor of the appointee, and the appointment can still be recalled or withdrawn by the
appointing authority (Grospe vs. Secretary of Public Works and Communication, 105 Phil. 129;
Villanueva vs. Balallo, 9 SCRA 407; Suarez vs. Commission on Elections, 20 SCRA 797). Until
an appointment has become a completed act, it would likewise be precipitate to invoke the rule
of security of tenure (See Aquino vs. Civil Service Commission, 208 SCRA 240; Mitra vs.
Subido, 21 SCRA 797).

It appearing that respondent Atty. Corpuz appointment was not approved by the Board, the same
cannot be considered as [a] valid appointment. As such, he cannot invoke security of tenure,
even if he has rendered service for a number of years.

Neither would the silence or the failure of the Board to recall the private respondents
appointment constitute as a [sic] consent or confirmation. In the aforecited case, the Supreme
Court restated the existing jurisprudence on the matter, thus:

The tolerance, acquiescence or mistake of the proper officials, resulting in the non-observance
of the pertinent rules on the matter does not render the legal requirement, on the necessity of the
approval of the Commissioner on Civil Service of appointments, ineffective and unenforceable.
The employee, whose appointment was not approved, may only be considered as a de facto
officer. (Tomali vs. Civil Service Commission, supra citing Favis vs. Rupisan, 17 SCRA 190,
191)

Thus, We find merit in petitioners contention that respondent Atty. David Corpuz did not
acquire a vested right nor does he presently enjoy a [sic] security of tenure to the subject position
in the MTRCB for failure to comply with the legal requirements needed for a valid appointment.
Hence, he cannot be reinstated. Not being a permanent employee of the Movie and Television
Review and Classification Board, the tenure of respondent Atty. Corpuz ceased when he was not
properly appointed under present law.

His motion for reconsideration having been denied in the Resolution[15] of 13 February 1996,
CORPUZ filed the instant petition under Rule 45 of the Rules of Court and asked us to reverse
the challenged decision of the Court of Appeals on the sole ground that:

THE COURT OF APPEALS ERRED IN RULING THAT THE APPOINTMENT OF
PETITIONER ATTY. DAVID B. CORPUZ DID NOT HAVE THE APPROVAL OF THE
MTRCB BOARD WHICH IF NOT CORRECTED, IS TANTAMOUNT TO A VIOLATION
OF HIS CONSTITUTIONAL RIGHTS TO SECURITY OF TENURE.

In his Memorandum, however, CORPUZ explicitly declared that he is no longer seeking
reinstatement with respondent MTRCB but for the continuity of his government service from the
time he was illegally dismissed on 30 June 1993 up to the time he was permanently employed
with the Office of the Ombudsman on 22 August 1994 plus back salaries and other benefits due
him if not for the illegal dismissal.[16]

Pursuant to Section 2 of P.D. No. 1986, the MTRCB is composed of a Chairman, a Vice-
Chairman and thirty (30) members, all appointed by the President of the Philippines. Section 5
thereof enumerates the following functions, powers and duties of the Chairman as the Chief
Executive Officer of the MTRCB, to wit:

(a) Execute, implement and enforce the decisions, orders, awards, rules and regulations issued
by the BOARD;

(b) Direct and supervise the operations and the internal affairs of the BOARD;

(c) Establish the internal organization and administrative procedures of the BOARD, and
recommend to the BOARD the appointment of the necessary administrative and subordinate
personnel; and

(d) Exercise such other powers and functions and perform such duties as are not specifically
lodged in the BOARD.

On the other hand, Section 16 thereof, quoted in the challenged decision of the Court of Appeals,
vests upon the Board itself the power to, inter alia, approve or disapprove the appointments of its
personnel.

It is thus clear that there are two stages in the process of appointing MTRCB personnel, other
than its Secretary, namely: (a) recommendation by the Chairman which is accomplished by the
signing of the appointment paper, which is among his powers under Section 5(d) above; and (b)
approval or disapproval by the MTRCB of the appointment. As to the Secretary, it is the
MTRCB itself that is empowered to appoint said official pursuant to Section 16.

It is long settled in the law of public offices and officers that where the power of appointment is
absolute, and the appointee has been determined upon, no further consent or approval is
necessary, and the formal evidence of the appointment, the commission, may issue at once.
Where, however, the assent or confirmation of some other officer or body is required, the
commission can issue or the appointment may be complete only when such assent or
confirmation is obtained. In either case, the appointment becomes complete when the last act
required of the appointing power is performed.[17] Until the process is completed, the appointee
can claim no vested right in the office nor invoke security of tenure. Hence, in the case of
CORPUZ, since the last act required for the completion of his appointment, viz., approval by the
MTRCB itself, was not obtained, as a matter of fact, the MTRCB ultimately disapproved it, his
appointment ceased to have effect, if at all, and his services were properly terminated. This
Court so declared in Favis v. Rupisan[18] where the appointment involved was not approved by
the Civil Service Commission pursuant to Section 16(h) of R.A. No. 2260 and Section 2(a) of
Rule VI of the Civil Service Rules implementing said law; Taboy v. Court of Appeals[19] and
Provincial Board of Cebu v. Presiding Judge of Cebu Court of First Instance[20] where the
appointments of subject employees were disapproved by the Provincial Boards pursuant to the
powers granted them; in Carillo v. Court of Appeals[21] where the required consent of the
municipal council in the appointment of the chief of police was not obtained; and in Tomali v.
Civil Service Commission,[22] which the Court of Appeals relied upon, where the required
submission to and approval by the Civil Service Commission were not made as required by
Section 9(h) of P.D. No. 807 and Section 11, Rule V of the Omnibus Rules Implementing Book
V of Executive Order No. 292, otherwise known as the Administrative Code of 1987. In the
latter, this Court held that compliance with the legal requirements for an appointment to a civil
service position is essential to make it fully effective. That the employee involved had, in fact,
assumed office and performed the functions and duties thereof is of no moment, for it matters not
that the appointee had served for several years. Those years of service cannot substitute for the
want of consent of another body required by law to complete the appointment. The tolerance,
acquiescence or mistake of the proper officials resulting in non-observance of the requirements
of law or rules to complete the appointment does not render the requirements ineffective and
unenforceable.[23]

A public official or employee who assumed office under an incomplete appointment is merely a
de facto officer for the duration of his occupancy of the office for the reason that he assumed
office under color of a known appointment which is void by reason of some defect or irregularity
in its exercise.[24] Undeniably, under the facts here, CORPUZ was such a de facto officer.

WHEREFORE, the instant petition is DENIED and the assailed decision of 13 October 1995 of
the Court of Appeals in CA-G.R. SP-No.37694 is AFFIRMED.

Costs against petitioner.
NO PROPERTY QUALIFICATIONS TO BE IMPOSED
G.R. No. L-24761 September 7, 1965

LEON G. MAQUERA, petitioner,
vs.
JUAN BORRA, CESAR MIRAFLOR, and GREGORIO SANTAYANA, in their respective
capacities as Chairman and Members of the Commission on Elections, and the COMMISSION
ON ELECTIONS, respondents.
MAQUERRA VS BORRA 15 SCRA 7 (1965)

In this petition, Maquera seek that the RA 4421 requiring all candidates for national, provincial
city and municipal offices to post a surety bond equivalent to salary or emoluments to which he
is a candidate.

The Court granted the petition as it is inconsistent with the nature and essence of the Republican
system ordained in our Constitution and the principle of social justice underlying the same for
said political system is premised upon the tent that sovereignty resides in the people and all
government authority emanates from them and this in turn implies necessarily that the right to
vote and to be voted for shall not be dependent upon the wealth of the individual
concerned,
whereas
social

justice presupposes equal opportunity for all, rich and poor alike and that accordingly no person
shall by reason of poverty, be denied the chance to be elected to public office.


Comment [l11]: No property Qualifications to
be imposed
Comment [l12]: Maquera vs borra
canonizado

FACTS: Petitioners were incumbent commissioners of the National Police Commission when
Republic Act. No. 8851, otherwise known as the PNP Reform and Reorganization Act of 1998,
took effect. Section 8 of Republic Act. No. 8851 provided that the terms of office of the
incumbent commissioners were deemed expired. Petitioners claimed that this violated their
security of tenure.

HELD: Petitioners are members of the civil service. Republic Act No. 8551 did not expressly
abolish the positions of petitioners. Under RA No. 6975, the National Police Commission was
under the Department of Interior and Local Government, while under Republic Act. No. 8551 it
is made an agency attached to the Department of Interior and Local Government. The
organizational structure and the composition of the National Police Commission remain
essentially the same except for the addition of the Chief of PNP as ex-officio member. The
powers and duties of the National Police Commission remain basically unchanged. No bona fide
reorganization of the NPC having been mandated by Congress and insofar as RA 8851 declares
the office of the petitioner as expired resulting in their separation from office, it is tantamount to
removing civil service employees from office without legal cause therefore, it must be struck
down for being constitutionally infirm.

Section 69. Nuisance candidates. - The Commission may motu proprio or upon a verified
petition of an interested party, refuse to give due course to or cancel a certificate of candidacy if
it is shown that said certificate has been filed to put the election process in mockery or disrepute
or to cause confusion among the voters by the similarity of the names of the registered
candidates or by other circumstances or acts which clearly demonstrate that the candidate has no
bona fide intention to run for the office for which the certificate of candidacy has been filed and
thus prevent a faithful determination of the true will of the electorate.

AUTHORITY TO PROVIDE QUALIFICATIONS
FLORES VS DRILON
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.
Comment [l13]:
Comment [l14]: BP 881 section 69
Comment [l15]: Authority to provide
qualifications
Comment [l16]: FLORES VS DRILON

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for
petitioners.



BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise known as the "Bases
Conversion and Development Act of 1992," under which respondent Mayor Richard J. Gordon
of Olongapo City was appointed Chairman and Chief Executive Officer of the Subic Bay
Metropolitan Authority (SBMA), is challenged in this original petition with prayer for
prohibition, preliminary injunction and temporary restraining order "to prevent useless and
unnecessary expenditures of public funds by way of salaries and other operational expenses
attached to the office . . . ." 2 Paragraph (d) reads

(d) Chairman administrator The President shall appoint a professional manager as
administrator of the Subic Authority with a compensation to be determined by the Board subject
to the approval of the Secretary of Budget, who shall be the ex oficio chairman of the Board and
who shall serve as the chief executive officer of the Subic Authority: Provided, however, That
for the first year of its operations from the effectivity of this Act, the mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority
(emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales,
and officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the
Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics
infringes on the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B,
of the Constitution, which states that "[n]o elective official shall be eligible for appointment or
designation in any capacity to any public officer or position during his tenure," 3 because the
City Mayor of Olongapo City is an elective official and the subject posts are public offices; (b)
Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President shall . . . . appoint all
other officers of the Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint", 4 since it was Congress through the
questioned proviso and not the President who appointed the Mayor to the subject posts; 5 and, (c)
Sec. 261, par. (g), of the Omnibus Election Code, which says:

Sec. 261. Prohibited Acts. The following shall be guilty of an election offense: . . . (g)
Appointment of new employees, creation of new position, promotion, or giving salary increases.
During the period of forty-five days before a regular election and thirty days before a special
election, (1) any head, official or appointing officer of a government office, agency or
instrumentality, whether national or local, including government-owned or controlled
corporations, who appoints or hires any new employee, whether provisional, temporary or casual,
or creates and fills any new position, except upon prior authority of the Commission. The
Commission shall not grant the authority sought unless it is satisfied that the position to be filled
is essential to the proper functioning of the office or agency concerned, and that the position
shall not be filled in a manner that may influence the election. As an exception to the foregoing
provisions, a new employee may be appointed in case of urgent need: Provided, however, That
notice of the appointment shall be given to the Commission within three days from the date of
the appointment. Any appointment or hiring in violation of this provision shall be null and void.
(2) Any government official who promotes, or gives any increase of salary or remuneration or
privilege to any government official or employee, including those in government-owned or
controlled corporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by
respondent Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to
the 11 May 1992 Elections.

The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states,
"Provided, however, That for the first year of its operations from the effectivity of this Act, the
mayor of the City of Olongapo shall be appointed as the chairman and chief executive officer of
the Subic Authority," violates the constitutional proscription against appointment or designation
of elective officials to other government posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision, agency
or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.

The section expresses the policy against the concentration of several public positions in one
person, so that a public officer or employee may serve full-time with dedication and thus be
efficient in the delivery of public services. It is an affirmation that a public office is a full-time
job. Hence, a public officer or employee, like the head of an executive department described in
Civil Liberties Union v. Executive Secretary, G.R. No. 83896, and Anti-Graft League of the
Philippines, Inc. v. Philip Ella C. Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6
". . . . should be allowed to attend to his duties and responsibilities without the distraction of
other governmental duties or employment. He should be precluded from dissipating his efforts,
attention and energy among too many positions of responsibility, which may result in
haphazardness and inefficiency . . . ."

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a
situation where a local elective official will work for his appointment in an executive position in
government, and thus neglect his constituents . . . ." 7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e.,
the Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief
Executive Officer of SBMA). Since this is precisely what the constitutional proscription seeks to
prevent, it needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7,
first par., Art. IX-B, of the Constitution. Here, the fact that the expertise of an elective official
may be most beneficial to the higher interest of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local
elective official to another post if so allowed by law or by the primary functions of his office. 8
But, the contention is fallacious. Section 94 of the LGC is not determinative of the
constitutionality of Sec. 13, par. (d), of R.A. 7227, for no legislative act can prevail over the
fundamental law of the land. Moreover, since the constitutionality of Sec. 94 of LGC is not the
issue here nor is that section sought to be declared unconstitutional, we need not rule on its
validity. Neither can we invoke a practice otherwise unconstitutional as authority for its validity.

In any case, the view that an elective official may be appointed to another post if allowed by law
or by the primary functions of his office, ignores the clear-cut difference in the wording of the
two (2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by
an appointive official when allowed by law or by the primary functions of his position, the first
paragraph appears to be more stringent by not providing any exception to the rule against
appointment or designation of an elective official to the government post, except as are
particularly recognized in the Constitution itself, e.g., the President as head of the economic and
planning agency; 9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a
member of Congress who may be designated ex officio member of the Judicial and Bar Council.
11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental
when drawn, and not without reason. It was purposely sought by the drafters of the Constitution
as shown in their deliberation, thus

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer, is
that the prohibition is more strict with respect to elective officials, because in the case of
appointive officials, there may be a law that will allow them to hold other positions.

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive officials,
there will be certain situations where the law should allow them to hold some other positions. 12

The distinction being clear, the exemption allowed to appointive officials in the second
paragraph cannot be extended to elective officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of
Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive
Secretary, 13 where we stated that the prohibition against the holding of any other office or
employment by the President, Vice-President, Members of the Cabinet, and their deputies or
assistants during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not
comprehend additional duties and functions required by the primary functions of the officials
concerned, who are to perform them in an ex officio capacity as provided by law, without
receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making
the subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of
Olongapo City without need of appointment. The phrase "shall be appointed" unquestionably
shows the intent to make the SBMA posts appointive and not merely adjunct to the post of
Mayor of Olongapo City. Had it been the legislative intent to make the subject positions ex
officio, Congress would have, at least, avoided the word "appointed" and, instead, "ex officio"
would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may
contravene Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have
the controversy resolved by the courts. Indeed, the Senators would not have been concerned with
the effects of Sec. 7, first par., had they considered the SBMA posts as ex officio.

Cognizant of the complication that may arise from the way the subject proviso was stated,
Senator Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall be
the Chairman" then that should foreclose the issue. It is a legislative choice." 15 The Senator
took a view that the constitutional proscription against appointment of elective officials may
have been sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City
instead of directing the President to appoint him to the post. Without passing upon this view of
Senator Saguisag, it suffices to state that Congress intended the posts to be appointive, thus
nibbling in the bud the argument that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by respondents
cannot be applied to uphold the constitutionality of the challenged proviso since it is not put in
issue in the present case. In the same vein, the argument that if no elective official may be
appointed or designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him
to receive double compensation 16 would be useless, is non sequitur since Sec. 8 does not affect
the constitutionality of the subject proviso. In any case, the Vice-President for example, an
elective official who may be appointed to a cabinet post under Sec. 3, Art. VII, may receive the
compensation attached to the cabinet position if specifically authorized by law.

Petitioners also assail the legislative encroachment on the appointing authority of the President.
Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board
and the Chief Executive Officer of SBMA, although he really has no choice under the law but to
appoint the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons
having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection
or designation of a person, by the person or persons having authority therefor, to fill an office or
public function and discharge the duties of the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the
authority vested with the power, of an individual who is to exercise the functions of a given
office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., 20 "the choice of a person to fill an office constitutes the
essence of his appointment," 21 and Mr. Justice Malcolm adds that an "[a]ppointment to office is
intrinsically an executive act involving the exercise of discretion." 22 In Pamantasan ng Lungsod
ng Maynila v. Intermediate Appellate Court 23 we held:

The power to appoint is, in essence, discretionary. The appointing power has the right of choice
which he may exercise freely according to his judgment, deciding for himself who is best
qualified among those who have the necessary qualifications and eligibilities. It is a prerogative
of the appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an
exercise of discretion of whom to appoint; it is not a ministerial act of issuing appointment
papers to the appointee. In other words, the choice of the appointee is a fundamental component
of the appointing power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress)
cannot at the same time limit the choice of the President to only one candidate. Once the power
of appointment is conferred on the President, such conferment necessarily carries the discretion
of whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress
may not abuse such power as to divest the appointing authority, directly or indirectly, of his
discretion to pick his own choice. Consequently, when the qualifications prescribed by Congress
can only be met by one individual, such enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular restriction on the power of appointment.
24

In the case at bar, while Congress willed that the subject posts be filled with a presidential
appointee for the first year of its operations from the effectivity of R.A. 7227, the proviso
nevertheless limits the appointing authority to only one eligible, i.e., the incumbent Mayor of
Olongapo City. Since only one can qualify for the posts in question, the President is precluded
from exercising his discretion to choose whom to appoint. Such supposed power of appointment,
sans the essential element of choice, is no power at all and goes against the very nature itself of
appointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the
first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly
an abuse of congressional authority to prescribe qualifications where only one, and no other, can
qualify. Accordingly, while the conferment of the appointing power on the President is a
perfectly valid legislative act, the proviso limiting his choice to one is certainly an encroachment
on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or
during his incumbency, he may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be considered fit for appointment. The
deliberation in the Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term" with
TENURE.

MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from his
position.

MR. DAVIDE. Yes, we should allow that prerogative.

MR. FOZ. Resign from his position to accept an executive position.

MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he may
leave the service, but if he is prohibited from being appointed within the term for which he was
elected, we may be depriving the government of the needed expertise of an individual. 25

Consequently, as long as he is an incumbent, an elective official remains ineligible for
appointment to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding
his ineligibility, appointed to other government posts, he does not automatically forfeit his
elective office nor remove his ineligibility imposed by the Constitution. On the contrary, since an
incumbent elective official is not eligible to the appointive position, his appointment or
designation thereto cannot be valid in view of his disqualification or lack of eligibility. This
provision should not be confused with Sec. 13, Art. VI, of the Constitution where "(n)o Senator
or Member of the House of Representatives may hold any other office or employment in the
Government . . . during his term without forfeiting his seat . . . ." The difference between the two
provisions is significant in the sense that incumbent national legislators lose their elective posts
only after they have been appointed to another government office, while other incumbent
elective officials must first resign their posts before they can be appointed, thus running the risk
of losing the elective post as well as not being appointed to the other post. It is therefore clear
that ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different
where it is expressly provided by law that a person holding one office shall be ineligible to
another. Such a provision is held to incapacitate the incumbent of an office from accepting or
holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258;
McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the
latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR
945) or voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the
constitution, or statutes declare that persons holding one office shall be ineligible for election or
appointment to another office, either generally or of a certain kind, the prohibition has been held
to incapacitate the incumbent of the first office to hold the second so that any attempt to hold the
second is void (Ala. State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant
to a legislative act that contravenes the Constitution cannot be sustained. He however remains
Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he
may be considered a de facto officer, "one whose acts, though not those of a lawful officer, the
law, upon principles of policy and justice, will hold valid so far as they involve the interest of the
public and third persons, where the duties of the office were exercised . . . . under color of a
known election or appointment, void because the officer was not eligible, or because there was a
want of power in the electing or appointing body, or by reason of some defect or irregularity in
its exercise, such ineligibility, want of power or defect being unknown to the public . . . . [or]
under color of an election, or appointment, by or pursuant to a public unconstitutional law,
before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5
Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and
other emoluments which may have been received by respondent Gordon pursuant to his
appointment may be retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting
the legality of the questioned proviso as well as the appointment of said respondent made
pursuant thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he
expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated

. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief
Executive of this Authority that we are creating; (much) as I, myself, would like to because I
know the capacity, integrity, industry and dedication of Mayor Gordon; (much) as we would like
to give him this terrific, burdensome and heavy responsibility, we cannot do it because of the
constitutional prohibition which is very clear. It says: "No elective official shall be appointed or
designated to another position in any capacity." 29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of
storms or a rock in the ocean amidst the raging of the waves." 30 One of the characteristics of the
Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change dictated
not by legitimate needs but only by passing fancies, temporary passions or occasional
infatuations of the people with ideas or personalities . . . . Such a Constitution is not likely to be
easily tampered with to suit political expediency, personal ambitions or ill-advised agitation for
change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided,
however, That for the first year of its operations from the effectivity of this Act, the Mayor of the
City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic
Authority," is declared unconstitutional; consequently, the appointment pursuant thereto of the
Mayor of Olongapo City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID.

However, all per diems, allowances and other emoluments received by respondent Gordon, if
any, as such Chairman and Chief Executive Officer may be retained by him, and all acts
otherwise legitimate done by him in the exercise of his authority as officer de facto of SBMA are
hereby UPHELD.

SO ORDERED.

DISQUALIFICATIONS
DUMLAO VS COMELEC
G.R. No. L-52245 January 22, 1980

PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., petitioners,
vs.
COMMISSION ON ELECTIONS, respondent.

Comment [l17]: DISQUALIFICATIONS
Comment [l18]: DUMLAO VS COMELEC
Raul M. Gonzales for petitioners

Office of the Solicitor General for respondent.



MELENCIO-HERRERA, J:

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by
petitioners, in their own behalf and all others allegedly similarly situated, seeking to enjoin
respondent Commission on Elections (COMELEC) from implementing certain provisions of
Batas Pambansa Big. 51, 52, and 53 for being unconstitutional.

The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya,
who has filed his certificate of candidacy for said position of Governor in the forthcoming
elections of January 30, 1980. Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a
member of the Bar who, as such, has taken his oath to support the Constitution and obey the laws
of the land. Petitioner, Alfredo Salapantan, Jr., is also a taxpayer, a qualified voter, and a resident
of San Miguel, Iloilo.

Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg.
52 as discriminatory and contrary to the equal protection and due process guarantees of the
Constitution. Said Section 4 provides:

Sec. 4. Special Disqualification in addition to violation of section 10 of Art. XI I-C of the
Constitution and disqualification mentioned in existing laws, which are hereby declared as
disqualification for any of the elective officials enumerated in section 1 hereof.

Any retired elective provincial city or municipal official who has received payment of the
retirement benefits to which he is entitled under the law, and who shall have been 6,5 years of
age at the commencement of the term of office to which he seeks to be elected shall not be
qualified to run for the same elective local office from which he has retired (Emphasis supplied)

Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and
that the classification provided therein is based on "purely arbitrary grounds and, therefore, class
legislation."

For their part, petitioners igot and Salapantan, Jr. assail the validity of the following statutory
provisions:

Sec 7. Terms of Office Unless sooner removed for cause, all local elective officials
hereinabove mentioned shall hold office for a term of six (6) years, which shall commence on the
first Monday of March 1980.

.... (Batas Pambansa Blg. 51) Sec. 4.

Sec. 4. ...

Any person who has committed any act of disloyalty to the State, including acts amounting to
subversion, insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate
for any of the offices covered by this Act, or to participate in any partisan political activity
therein:

provided that a judgment of conviction for any of the aforementioned crimes shall be conclusive
evidence of such fact and

the filing of charges for the commission of such crimes before a civil court or military tribunal
after preliminary investigation shall be prima fascie evidence of such fact.

... (Batas Pambansa Big. 52) (Paragraphing and Emphasis supplied).

Section 1. Election of certain Local Officials ... The election shall be held on January 30,
1980. (Batas Pambansa, Blg. 52)

Section 6. Election and Campaign Period The election period shall be fixed by the
Commission on Elections in accordance with Section 6, Art. XII-C of the Constitution. The
period of campaign shall commence on December 29, 1979 and terminate on January 28, 1980.
(ibid.)

In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the
accreditation of some political parties by respondent COMELEC, as authorized by Batas
Pambansa Blg. 53, on the ground that it is contrary to section 9(1)Art. XIIC of the Constitution,
which provides that a "bona fide candidate for any public office shall be it. from any form of
harassment and discrimination. "The question of accreditation will not be taken up in this case
but in that of Bacalso, et als. vs. COMELEC et als. No. L-52232) where the issue has been
squarely raised,

Petitioners then pray that the statutory provisions they have challenged be declared null and void
for being violative of the Constitution.

I . The procedural Aspect

At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence,
traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and
actions. Petitioner Dumlao's interest is alien to that of petitioners Igot and Salapantan Petitioner
Dumlao does not join petitioners Igot and Salapantan in the burden of their complaint, nor do the
latter join Dumlao in his. The respectively contest completely different statutory provisions.
Petitioner Dumlao has joined this suit in his individual capacity as a candidate. The action of
petitioners Igot and Salapantan is more in the nature of a taxpayer's suit. Although petitioners
plead nine constraints as the reason of their joint Petition, it would have required only a
modicum more of effort tor petitioner Dumlao, on one hand said petitioners lgot and Salapantan,
on the other, to have filed separate suits, in the interest of orderly procedure.

For another, there are standards that have to be followed inthe exercise of the function of judicial
review, namely (1) the existence of an appropriate case:, (2) an interest personal and substantial
by the party raising the constitutional question: (3) the plea that the function be exercised at the
earliest opportunity and (4) the necessity that the constiutional question be passed upon in order
to decide the case (People vs. Vera 65 Phil. 56 [1937]).

It may be conceded that the third requisite has been complied with, which is, that the parties have
raised the issue of constitutionality early enough in their pleadings.

This Petition, however, has fallen far short of the other three criteria.

A. Actual case and controversy.

It is basic that the power of judicial review is limited to the determination of actual cases and
controversies.

Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas
Pambansa Blg. 52, quoted earlier, as being contrary to the equal protection clause guaranteed by
the Constitution, and seeks to prohibit respondent COMELEC from implementing said provision.
Yet, Dumlao has not been adversely affected by the application of that provision. No petition
seeking Dumlao's disqualification has been filed before the COMELEC. There is no ruling of
that constitutional body on the matter, which this Court is being asked to review on Certiorari.
His is a question posed in the abstract, a hypothetical issue, and in effect, a petition for an
advisory opinion from this Court to be rendered without the benefit of a detailed factual record
Petitioner Dumlao's case is clearly within the primary jurisdiction (see concurring Opinion of
now Chief Justice Fernando in Peralta vs. Comelec, 82 SCRA 30, 96 [1978]) of respondent
COMELEC as provided for in section 2, Art. XII-C, for the Constitution the pertinent portion of
which reads:

"Section 2. The Commission on Elections shall have the following power and functions:

1) xxx

2) Be the sole judge of all contests relating to the elections, returns and qualifications of all
members of the National Assembly and elective provincial and city officials. (Emphasis supplied)

The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:

Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof.

B. Proper party.

The long-standing rule has been that "the person who impugns the validity of a statute must have
a personal and substantial interest in the case such that he has sustained, or will sustain, direct
injury as a result of its enforcement" (People vs. Vera, supra).

In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition,
that Igot is said to be a candidate for Councilor. Even then, it cannot be denied that neither one
has been convicted nor charged with acts of disloyalty to the State, nor disqualified from being
candidates for local elective positions. Neither one of them has been calle ed to have been
adversely affected by the operation of the statutory provisions they assail as unconstitutional
Theirs is a generated grievance. They have no personal nor substantial interest at stake. In the
absence of any litigate interest, they can claim no locus standi in seeking judicial redress.

It is true that petitioners Igot and Salapantan have instituted this case as a taxpayer's suit, and that
the rule enunciated in People vs. Vera, above stated, has been relaxed in Pascual vs. The
Secretary of Public Works (110 Phil. 331 [1960], thus:

... it is well settled that the validity of a statute may be contested only by one who will sustain a
direct injury in consequence of its enforcement. Yet, there are many decisions nullifying at the
instance of taxpayers, laws providing for the disbursement of public funds, upon the theory that
"the expenditure of public funds, by an officer of the State for the purpose of administering an
unconstitutional act constitutes a misapplication of such funds," which may be enjoined at the
request of a taxpayer.

In the same vein, it has been held:

In the determination of the degree of interest essential to give the requisite standing to attack the
constitutionality of a statute, the general rule is that not only persons individually affected, but
also taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by
taxation and they may, therefore, question the constitutionality of statutes requiring expenditure
of public moneys. (Philippine Constitution Association, Inc., et als., vs. Gimenez, et als., 15
SCRA 479 [1965]).

However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and
sections 4, 1, and 6 BP Blg. 52, do not directly involve the disbursement of public funds. While,
concededly, the elections to be held involve the expenditure of public moneys, nowhere in their
Petition do said petitioners allege that their tax money is "being extracted and spent in violation
of specific constitutional protections against abuses of legislative power" (Flast v. Cohen, 392
U.S., 83 [1960]), or that there is a misapplication of such funds by respondent COMELEC (see
Pascual vs. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money is being
deflected to any improper purpose. Neither do petitioners seek to restrain respondent from
wasting public funds through the enforcement of an invalid or unconstitutional law. (Philippine
Constitution Association vs. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution
Association vs. Gimenez, 15 SCRA 479 [1965]). Besides, the institution of a taxpayer's suit, per
se is no assurance of judicial review. As held by this Court in Tan vs. Macapagal (43 SCRA 677
[1972]), speaking through our present Chief Justice, this Court is vested with discretion as to
whether or not a taxpayer's suit should be entertained.

C. Unavoidability of constitutional question.

Again upon the authority of People vs. Vera, "it is a wellsettled rule that the constitutionality of
an act of the legislature will not be determined by the courts unless that question is properly
raised and presented in appropriate cases and is necessary to a determination of the case; i.e., the
issue of constitutionality must be the very lis mota presented."

We have already stated that, by the standards set forth in People vs. Vera, the present is not an
"appropriate case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are
actually without cause of action. It follows that the necessity for resolving the issue of
constitutionality is absent, and procedural regularity would require that this suit be dismissed.

II. The substantive viewpoint.

We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not
being entirely without discretion in the matter. Thus, adherence to the strict procedural standard
was relaxed in Tinio vs. Mina (26 SCRA 512 [1968]); Edu vs. Ericta (35 SCRA 481 [1970]); and
in Gonzalez vs. Comelec (27 SCRA 835 [1969]), the Opinion in the Tinio and Gonzalez cases
having been penned by our present Chief Justice. The reasons which have impelled us are the
paramount public interest involved and the proximity of the elections which will be held only a
few days hence.

Petitioner Dumlao's contention that section 4 of BP Blg. 52 is discriminatory against him
personally is belied by the fact that several petitions for the disqualification of other candidates
for local positions based on the challenged provision have already been filed with the
COMELEC (as listed in p. 15, respondent's Comment). This tellingly overthrows Dumlao's
contention of intentional or purposeful discrimination.

The assertion that Section 4 of BP Blg. 52 is contrary to the safer guard of equal protection is
neither well taken. The constitutional guarantee of equal protection of the laws is subject to
rational classification. If the groupings are based on reasonable and real differentiations, one
class can be treated and regulated differently from another class. For purposes of public service,
employees 65 years of age, have been validly classified differently from younger employees.
Employees attaining that age are subject to compulsory retirement, while those of younger ages
are not so compulsorily retirable.

In respect of election to provincial, city, or municipal positions, to require that candidates should
not be more than 65 years of age at the time they assume office, if applicable to everyone, might
or might not be a reasonable classification although, as the Solicitor General has intimated, a
good policy of the law would be to promote the emergence of younger blood in our political
elective echelons. On the other hand, it might be that persons more than 65 years old may also be
good elective local officials.

Coming now to the case of retirees. Retirement from government service may or may not be a
reasonable disqualification for elective local officials. For one thing, there can also be retirees
from government service at ages, say below 65. It may neither be reasonable to disqualify
retirees, aged 65, for a 65 year old retiree could be a good local official just like one, aged 65,
who is not a retiree.

But, in the case of a 65-year old elective local official, who has retired from a provincial, city or
municipal office, there is reason to disqualify him from running for the same office from which
he had retired, as provided for in the challenged provision. The need for new blood assumes
relevance. The tiredness of the retiree for government work is present, and what is emphatically
significant is that the retired employee has already declared himself tired and unavailable for the
same government work, but, which, by virtue of a change of mind, he would like to assume
again. It is for this very reason that inequality will neither result from the application of the
challenged provision. Just as that provision does not deny equal protection neither does it permit
of such denial (see People vs. Vera, 65 Phil. 56 [1933]). Persons similarly situated are sinlilarly
treated.

In fine, it bears reiteration that the equal protection clause does not forbid all legal classification.
What is proscribes is a classification which is arbitrary and unreasonable. That constitutional
guarantee is not violated by a reasonable classification based upon substantial distinctions, where
the classification is germane to the purpose of the law and applies to all Chose belonging to the
same class (Peralta vs. Comelec, 82 SCRA 30 [1978] citing Felwa vs. Salas, 18 SCRA 606
[1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967];
Inchong etc., et al. vs. Hernandez 101 Phil. 1155 [1957]). The purpose of the law is to allow the
emergence of younger blood in local governments. The classification in question being pursuant
to that purpose, it cannot be considered invalid "even it at times, it may be susceptible to the
objection that it is marred by theoretical inconsistencies" (Chief Justice Fernando, The
Constitution of the Philippines, 1977 ed., p. 547).

There is an additional consideration. Absent herein is a showing of the clear invalidity of the
questioned provision. Well accepted is the rule that to justify the nullification of a law, there
must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal breach.
Courts are practically unanimous in the pronouncement that laws shall not be declared invalid
unless the conflict with the Constitution is clear beyond reasonable doubt (Peralta vs.
COMELEC, 82 SCRA 55 [1978], citing Cooper vs. Telfair 4 Dall 14; Dodd, Cases on
Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the compentence of the legislature to
prescribe qualifications for one who desires to become a candidate for office provided they are
reasonable, as in this case.

In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4
of Batas Pambansa Blg. 52, quoted in full earlier, and which they challenge, may be divided in
two parts. The first provides:

a. judgment of conviction jor any of the aforementioned crimes shall be conclusive evidence of
such fact ...

The supremacy of the Constitution stands out as the cardinal principle. We are aware of the
presumption of validity that attaches to a challenged statute, of the well-settled principle that "all
reasonable doubts should be resolved in favor of constitutionality," and that Courts will not set
aside a statute as constitutionally defective "except in a clear case." (People vs. Vera, supra). We
are constrained to hold that this is one such clear case.

Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself
and counsel (Article IV, section 19, 1973 Constitution). An accusation, according to the
fundamental law, is not synonymous with guilt. The challenged proviso contravenes the
constitutional presumption of innocence, as a candidate is disqualified from running for public
office on the ground alone that charges have been filed against him before a civil or military
tribunal. It condemns before one is fully heard. In ultimate effect, except as to the degree of
proof, no distinction is made between a person convicted of acts of dislotalty and one against
whom charges have been filed for such acts, as both of them would be ineligible to run for public
office. A person disqualified to run for public office on the ground that charges have been filed
against him is virtually placed in the same category as a person already convicted of a crime with
the penalty of arresto, which carries with it the accessory penalty of suspension of the right to
hold office during the term of the sentence (Art. 44, Revised Penal Code).

And although the filing of charges is considered as but prima facie evidence, and therefore, may
be rebutted, yet. there is "clear and present danger" that because of the proximity of the elections,
time constraints will prevent one charged with acts of disloyalty from offering contrary proof to
overcome the prima facie evidence against him.

Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts
rather than before an administrative body such as the COMELEC. A highly possible conflict of
findings between two government bodies, to the extreme detriment of a person charged, will
thereby be avoided. Furthermore, a legislative/administrative determination of guilt should not
be allowed to be substituted for a judicial determination.

Being infected with constitutional infirmity, a partial declaration of nullity of only that
objectionable portion is mandated. It is separable from the first portion of the second paragraph
of section 4 of Batas Pambansa Big. 52 which can stand by itself.

WHEREFORE, 1) the first paragraph of section 4 of Batas pambansa Bilang 52 is hereby
declared valid. Said paragraph reads:

SEC. 4. Special disqualification. In addition to violation of Section 10 of Article XII(C) of the
Constitution and disqualifications mentioned in existing laws which are hereby declared as
disqualification for any of the elective officials enumerated in Section 1 hereof, any retired
elective provincial, city or municipal official, who has received payment of the retirement
benefits to which he is entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected, shall not be qualified to run
for the same elective local office from which he has retired.

2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that
"... the filing of charges for the commission of such crimes before a civil court or military
tribunal after preliminary investigation shall be prima facie evidence of such fact", is hereby
declared null and void, for being violative of the constitutional presumption of innocence
guaranteed to an accused.

SO ORDERED.

Makasiar, Antonio, Concepcion, Jr., Fernandez and Guerrero, JJ., concur.

Fernando, C.J., concurs and submits a brief separate opinion.

De Castro, J., abstain as far as petitioner Dumlao is concerned.





Separate Opinions



BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art.
XI I is more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of
judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute
an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
statute or presidential decree is invoked. 3 While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must
ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this Tribunal
is not susceptible to the reproach that it has imprisoned itself in its allegiance to the philosophy
of judicial self-restraint. There are, however, limits to judicial activism. It cannot be too strongly
stressed that a petition of this character must ever remain an orderly proceeding that cannot be
oblivious of the requisites to be complied with to justify a pronouncement on constitutional
issues. Where there is exuberance in the exercise of judicial power, the forms of litigation are but
slight retaining walls. It is right and proper that the voice of the Solicitor General should be heard
in protest against such neglect of rudimentary precepts. Necessarily then, whenever objections
based on refusal to abide by the procedural principles are presented, this Court must rule. It
would suffice if thereby the petition is dismissed for non-observance of the controlling doctrines.
There are times, however, when the controversy is of such a character that to resolve doubts,
erase uncertainty, and assure respect for constitutional limitations, this Tribunal must pass on the
merits. This is one such case. I therefore concur with the opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness of
which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor
of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of age. 4
Clearly then, the plea for invalidating such provision is the motive attributed to the Interim
Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character.
The weakness of the petition is thus apparent. No decision of this Tribunal can be cited in
support of such a proposition. It would be to extend unduly the concept of judicial review if a
court can roam far and wide and range at will over the variety and diversity of the reasons, the
promptings that may lead a legislator to cast his vote for or against a proposed legislation. It is
not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive.
That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v.
United States: 5 "The decisions of this Court [Supreme Court of the United States] from the
beginning lend no support whatever to the assumption that the judiciary may restrain the exercise
of lawful power on the assumption that a wrongful purpose of motive has caused the power to be
exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O' Brien 7
put the matter thus: "Inquiries into congressional motives or purposes are a hazardous matter.
When the issue is simply the interpretation of legislation, the Court will look to statements by
legislators for guidance as to the purpose of the legislature, because the benefit to sound
decision-making in this circumstance is thought sufficient to risk the possibility of misreading
Congress' purpose. It is entirely a different matter when we are asked to void a statute that is,
under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of
Congressmen said about it. What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us
to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation
which Congress had the undoubted power to enact and which could be reenacted in its exact
form if the same or another legislator made a 'wiser' speech about it." 8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response. As
the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances, which if
not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest. 10 It cannot be denied that others similarly fall under the same
ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-
proscribed class. The point was likewise raised as to why should national officials be excluded in
the above provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In its
opinion, what called for such a measure is the propensity of the local officials having reached the
retirement age and having received retirement benefits once again running for public office.
Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M.
Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for
correction, and the legislation that was the result of its deliberation sought to apply the necessary
palliative. That it stopped short of possibly attaining the cure of other analogous ills certainly
does not stigmatize its effort as a denial of equal protection. We have given our sanction to the
principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of
all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is
futile and unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense
of justice." 13 As rightfully stressed in the opinion of the Court, the time element may invariably
preclude a full hearing on the charge against him and thus effectively negate the opportunity of
an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor,
whether in a civil court or in a military tribunal saddled as he is with so many complaints filed on
his desk would give in to the all-too-human propensity to take the easy way out and to file
charges, then a candidate Would be hard put to destroy the presumption. A sense of realism for
me compels a declaration of nullity of a provision which on its face is patently offensive to the
Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory
and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of
governor of his home province of Nueva Vizcaya and would in effect bar the electors of his
province from electing him to said office in the January 30 elections, simply because he is a
retired provincial governor of said province "who has received payment of the retirement
benefits to which he is entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected."

To specially and peculiarly ban a 65-year old previously retired elective local official from
running for the same elective office (of governor, in this case) previously held by him and from
which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not
similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for
governor (because the disqualification is for the retiree of 65 to run for the same elective office
from which he retired) but petitioner is barred from doing so (although he may run for any other
lesser office). Both are 65 and are retirees, yet one is barred from running for the office of
governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner
who has cause to that "the aforesaid provision was concocted and designed precisely to frustrate
any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 (since no
other case by a former governor similarly barred by virtue of said provision can never be cited
2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee that equal
protection and security shall be given under the law to every person, under analogous if not
Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would
bar 65-year old retirees from running for the same elective local office) is not rational nor
reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood" because
such "old blood" retirees may continue in local governments since they are not disqualified at all
to run for any other local elective office such as from provincial governor, vice-governor, city,
municipal or district mayor and vice- mayor to member of the Sangguniang Panlalawigan
Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective office from
which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years
of age, is running as the official KBL candidate for governor of his province. And even in the
case of 65-year old local elective officials, they are disqualified only when they have received
payment of the retirement benefits to which they are entitled under the law (which amount to
very little, compared to retirement benefits of other executive officials and members of the
judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly,
their disqualification or non-disqualification and consequent classification as "old blood" or
"new blood" cannot hinge on such an irrelevant question of whether or not they have received
their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa
and who has just this month completed 81 years of age and has been hailed by the President
himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al. the most, a
minimum age to hold public office has been required as a qualification to insure a modicum of
maturity 'now reduced to 21 years in the present batas), but no maximum age has ever been
imposed as a disqualification for elect public office since the right and win of the people to elect
the candidate of their choice for any elective office, no matter his age has always been
recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause
which mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand and
hostile discrimination and the oppression of in quality on the other. The questioned provision
should therefore at the least be declared invalid in its application insofar as it would disqualify
petitioner from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for consideration,
there should be none as to the privileges conferred and the liabilities imposed. There can be no
undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not Identical are analogous.
If law be looked upon in terms of burden or charges, those that full within a class should be
treated in the same fashion, whatever restrictions cast on some in the group equally binding on
the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after
preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty
to the State on the part of the candidate and disqualify him from his candidacy. Such a provision
could be the most insidious weapon to disqualify bona fide candidates who seem to be headed
for election and places in the hands of the military and civil prosecutors a dangerous and
devastating weapon of cutting off any candidate who may not be to their filing through the filing
of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a judgment
of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State
and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election Code. 5
Otherwise, the questioned provision would deny the bona fide candidate substantive due process
and would be grossly violative of his constitutional right of presumption of innocence and of the
above-quoted provision of the 1973 Constitution protecting candidates for public office from any
form of harassment and discrimination.

ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a majority in
favor of the declarations and pronouncements above referred to in the two preceding paragraphs,
in view of the urgency of the matter and the evil sought to be avoided. However, as of this
writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated by the
view that the action to nullify such second paragraph of section 4 of the Batas in question is
premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as dissents
against the majority action.







Separate Opinions



BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art.
XI I is more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of
judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute
an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
statute or presidential decree is invoked. 3 While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must
ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this Tribunal
is not susceptible to the reproach that it has imprisoned itself in its allegiance to the philosophy
of judicial self-restraint. There are, however, limits to judicial activism. It cannot be too strongly
stressed that a petition of this character must ever remain an orderly proceeding that cannot be
oblivious of the requisites to be complied with to justify a pronouncement on constitutional
issues. Where there is exuberance in the exercise of judicial power, the forms of litigation are but
slight retaining walls. It is right and proper that the voice of the Solicitor General should be heard
in protest against such neglect of rudimentary precepts. Necessarily then, whenever objections
based on refusal to abide by the procedural principles are presented, this Court must rule. It
would suffice if thereby the petition is dismissed for non-observance of the controlling doctrines.
There are times, however, when the controversy is of such a character that to resolve doubts,
erase uncertainty, and assure respect for constitutional limitations, this Tribunal must pass on the
merits. This is one such case. I therefore concur with the opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness of
which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor
of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of age. 4
Clearly then, the plea for invalidating such provision is the motive attributed to the Interim
Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character.
The weakness of the petition is thus apparent. No decision of this Tribunal can be cited in
support of such a proposition. It would be to extend unduly the concept of judicial review if a
court can roam far and wide and range at will over the variety and diversity of the reasons, the
promptings that may lead a legislator to cast his vote for or against a proposed legislation. It is
not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive.
That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v.
United States: 5 "The decisions of this Court [Supreme Court of the United States] from the
beginning lend no support whatever to the assumption that the judiciary may restrain the exercise
of lawful power on the assumption that a wrongful purpose of motive has caused the power to be
exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O' Brien 7
put the matter thus: "Inquiries into congressional motives or purposes are a hazardous matter.
When the issue is simply the interpretation of legislation, the Court will look to statements by
legislators for guidance as to the purpose of the legislature, because the benefit to sound
decision-making in this circumstance is thought sufficient to risk the possibility of misreading
Congress' purpose. It is entirely a different matter when we are asked to void a statute that is,
under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of
Congressmen said about it. What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us
to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation
which Congress had the undoubted power to enact and which could be reenacted in its exact
form if the same or another legislator made a 'wiser' speech about it." 8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response. As
the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances, which if
not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest. 10 It cannot be denied that others similarly fall under the same
ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-
proscribed class. The point was likewise raised as to why should national officials be excluded in
the above provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In its
opinion, what called for such a measure is the propensity of the local officials having reached the
retirement age and having received retirement benefits once again running for public office.
Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M.
Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for
correction, and the legislation that was the result of its deliberation sought to apply the necessary
palliative. That it stopped short of possibly attaining the cure of other analogous ills certainly
does not stigmatize its effort as a denial of equal protection. We have given our sanction to the
principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of
all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is
futile and unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense
of justice." 13 As rightfully stressed in the opinion of the Court, the time element may invariably
preclude a full hearing on the charge against him and thus effectively negate the opportunity of
an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor,
whether in a civil court or in a military tribunal saddled as he is with so many complaints filed on
his desk would give in to the all-too-human propensity to take the easy way out and to file
charges, then a candidate Would be hard put to destroy the presumption. A sense of realism for
me compels a declaration of nullity of a provision which on its face is patently offensive to the
Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory
and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of
governor of his home province of Nueva Vizcaya and would in effect bar the electors of his
province from electing him to said office in the January 30 elections, simply because he is a
retired provincial governor of said province "who has received payment of the retirement
benefits to which he is entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected."

To specially and peculiarly ban a 65-year old previously retired elective local official from
running for the same elective office (of governor, in this case) previously held by him and from
which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not
similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for
governor (because the disqualification is for the retiree of 65 to run for the same elective office
from which he retired) but petitioner is barred from doing so (although he may run for any other
lesser office). Both are 65 and are retirees, yet one is barred from running for the office of
governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner
who has cause to that "the aforesaid provision was concocted and designed precisely to frustrate
any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 (since no
other case by a former governor similarly barred by virtue of said provision can never be cited
2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee that equal
protection and security shall be given under the law to every person, under analogous if not
Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would
bar 65-year old retirees from running for the same elective local office) is not rational nor
reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood" because
such "old blood" retirees may continue in local governments since they are not disqualified at all
to run for any other local elective office such as from provincial governor, vice-governor, city,
municipal or district mayor and vice- mayor to member of the Sangguniang Panlalawigan
Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective office from
which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years
of age, is running as the official KBL candidate for governor of his province. And even in the
case of 65-year old local elective officials, they are disqualified only when they have received
payment of the retirement benefits to which they are entitled under the law (which amount to
very little, compared to retirement benefits of other executive officials and members of the
judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly,
their disqualification or non-disqualification and consequent classification as "old blood" or
"new blood" cannot hinge on such an irrelevant question of whether or not they have received
their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa
and who has just this month completed 81 years of age and has been hailed by the President
himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al. the most, a
minimum age to hold public office has been required as a qualification to insure a modicum of
maturity 'now reduced to 21 years in the present batas), but no maximum age has ever been
imposed as a disqualification for elect public office since the right and win of the people to elect
the candidate of their choice for any elective office, no matter his age has always been
recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause
which mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand and
hostile discrimination and the oppression of in quality on the other. The questioned provision
should therefore at the least be declared invalid in its application insofar as it would disqualify
petitioner from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for consideration,
there should be none as to the privileges conferred and the liabilities imposed. There can be no
undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not Identical are analogous.
If law be looked upon in terms of burden or charges, those that full within a class should be
treated in the same fashion, whatever restrictions cast on some in the group equally binding on
the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after
preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty
to the State on the part of the candidate and disqualify him from his candidacy. Such a provision
could be the most insidious weapon to disqualify bona fide candidates who seem to be headed
for election and places in the hands of the military and civil prosecutors a dangerous and
devastating weapon of cutting off any candidate who may not be to their filing through the filing
of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a judgment
of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State
and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election Code. 5
Otherwise, the questioned provision would deny the bona fide candidate substantive due process
and would be grossly violative of his constitutional right of presumption of innocence and of the
above-quoted provision of the 1973 Constitution protecting candidates for public office from any
form of harassment and discrimination.

ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a majority in
favor of the declarations and pronouncements above referred to in the two preceding paragraphs,
in view of the urgency of the matter and the evil sought to be avoided. However, as of this
writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated by the
view that the action to nullify such second paragraph of section 4 of the Batas in question is
premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as dissents
against the majority action.



Separate Opinions

BARREDO, J., concurring:

But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art.
XI I is more expensive than the equal protection clause.

AQUINO, J, concurring:

concur in the result as to paragraph I of the dispositive part of the decision. I dissent as to
paragraph 2. In my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being
similar to certain presumptions in Articles 217 and 315 of the Penal Code, as amended by
Republic Act No. 4885. See U.S. v. Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas
Pambansa Big. 52 should be one which is final and unappealable.

FERNANDO, C.J., concurring.

It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the
Court, penned by Justice Melencio-Herrera, of the standard that must be met before the power of
judicial review may be availed of, set forth with such lucidity and force by Justice Laurel in the
two leading cases of Angara v. Electoral Commission 1 and People v. Vera, 2 did not constitute
an obstacle to this Court ruling on the crucial constitutional issues raised. It was a cause for
concern, for me at least, that counsel of private parties in not a few cases in the recent past had
shown less than full awareness of the doctrines, procedural in character, that call for application
whenever the exercise of this awesome and delicate responsibility of adjudging the validity of a
statute or presidential decree is invoked. 3 While this Court cannot be accused of being bound by
the letters of judicial timidity, it remains true that no cavalier disregard of tried and tested
concepts should be given encouragement. A petitioner who bases his claim for relief on asserted
constitutional deficiencies deserves to be heard. That goes without saying. For the judiciary must
ever endeavor to vindicate rights safeguarded by the fundamental law. In that sense, this Tribunal
is not susceptible to the reproach that it has imprisoned itself in its allegiance to the philosophy
of judicial self-restraint. There are, however, limits to judicial activism. It cannot be too strongly
stressed that a petition of this character must ever remain an orderly proceeding that cannot be
oblivious of the requisites to be complied with to justify a pronouncement on constitutional
issues. Where there is exuberance in the exercise of judicial power, the forms of litigation are but
slight retaining walls. It is right and proper that the voice of the Solicitor General should be heard
in protest against such neglect of rudimentary precepts. Necessarily then, whenever objections
based on refusal to abide by the procedural principles are presented, this Court must rule. It
would suffice if thereby the petition is dismissed for non-observance of the controlling doctrines.
There are times, however, when the controversy is of such a character that to resolve doubts,
erase uncertainty, and assure respect for constitutional limitations, this Tribunal must pass on the
merits. This is one such case. I therefore concur with the opinion of the Court.

It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may
not be amiss on what for me is the proper approach to take as to the lack of power of this Court
to pass on the motives of the legislative body, on the lack of persuasiveness of petitioner's
argument based on the equal protection guarantee, and on the fundamental concept of fairness of
which the due process clause is an embodiment, thus calling for the nullification of the
disqualification of a candidate upon the mere filing of charges against him.

1. The challenge to the provision in question is predicated on what was referred to as "a known
fact in the province of Nueva Vizcaya that the aforesaid provision was concocted and designed
precisely to frustrate any bid of herein petitioner to make a political come back [sic] as governor
of Nueva Vizcaya. The wordings [sic] of the law is so peculiarly attuned to discriminate against
herein petitioner because every condition imposed as disqualification grounds are known to be
possessed by him because he was a former elective provincial official who has received his
retirement benefits, he desires to run for the same elective office and at the commencement of
the term of office to which he now seeks to be elected, he shall have reached 65 years of age. 4
Clearly then, the plea for invalidating such provision is the motive attributed to the Interim
Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character.
The weakness of the petition is thus apparent. No decision of this Tribunal can be cited in
support of such a proposition. It would be to extend unduly the concept of judicial review if a
court can roam far and wide and range at will over the variety and diversity of the reasons, the
promptings that may lead a legislator to cast his vote for or against a proposed legislation. It is
not what inspired the introduction of a bill but the effect thereof if duly enacted that is decisive.
That would be the test for its validity or lack of it. There is this relevant excerpt from McCray v.
United States: 5 "The decisions of this Court [Supreme Court of the United States] from the
beginning lend no support whatever to the assumption that the judiciary may restrain the exercise
of lawful power on the assumption that a wrongful purpose of motive has caused the power to be
exerted. 6 The late Chief Justice Warren, who penned the opinion in United States v. O' Brien 7
put the matter thus: "Inquiries into congressional motives or purposes are a hazardous matter.
When the issue is simply the interpretation of legislation, the Court will look to statements by
legislators for guidance as to the purpose of the legislature, because the benefit to sound
decision-making in this circumstance is thought sufficient to risk the possibility of misreading
Congress' purpose. It is entirely a different matter when we are asked to void a statute that is,
under well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of
Congressmen said about it. What motivates one legislator to make a speech about a statute is not
necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us
to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation
which Congress had the undoubted power to enact and which could be reenacted in its exact
form if the same or another legislator made a 'wiser' speech about it." 8

2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial
of equal protection, then his plea for nullification should be accorded a sympathetic response. As
the opinion of the Court makes clear, such imputation is not deserving of credence. The
classification cannot be stigmatized as lacking in rationality. It is germane to the subject. Age, as
well as the fact of retirement and the receipt of retirement benefits are factors that can enter into
any legislative determination of what disqualifications to impose. As was pointed out in J.M.
Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then that the laws operate
equally and uniformly on all persons under similar circumstances or that all persons must be
treated in the same manner, the conditions not being different, both in the privileges conferred
and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances, which if
not Identical, are analogous. If law be looked upon in terms of burden or charges, those that fall
within a class should be treated in the same fashion, whatever restrictions cast on some in the
group equally binding on the rest. 10 It cannot be denied that others similarly fall under the same
ban. It was not directed at petitioner solely. The most that can be said is that he falls within the-
proscribed class. The point was likewise raised as to why should national officials be excluded in
the above provision. The answer is simple. There is nothing to prevent the legislative body from
following a system of priorities. This it did under the challenged legislative provision. In its
opinion, what called for such a measure is the propensity of the local officials having reached the
retirement age and having received retirement benefits once again running for public office.
Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M.
Tuason and Co., Inc. finds relevance: "It was confronted with a situation that caned for
correction, and the legislation that was the result of its deliberation sought to apply the necessary
palliative. That it stopped short of possibly attaining the cure of other analogous ills certainly
does not stigmatize its effort as a denial of equal protection. We have given our sanction to the
principle underlying the exercise of police power and taxation, but certainly not excluding
eminent domain, that 'the legislature is not required by the Constitution to adhere to the policy of
all "or none." ' Thus, to reiterate, the invocation by petitioner of the equal protection clause is
futile and unavailing ." 11

3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the
commission of such crimes as subversion, insurrection, rebellion or others of similar nature
before a civil court or military tribunal after preliminary investigation, being a prima facie
evidence of such fact and therefore justifying the disqualification of a candidate. The opinion of
the Court invoked the constitutional presumption of innocence as a basis for its being annulled.
That conclusion is well-founded. Such being the case, I am in full agreement. I would add that
such a provision is moreover tainted with arbitrariness and therefore is violative of the due
process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v. Beson, 12 is
"not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to man's innate sense
of justice." 13 As rightfully stressed in the opinion of the Court, the time element may invariably
preclude a full hearing on the charge against him and thus effectively negate the opportunity of
an individual to present himself as a candidate. If, as has been invariably the case, a prosecutor,
whether in a civil court or in a military tribunal saddled as he is with so many complaints filed on
his desk would give in to the all-too-human propensity to take the easy way out and to file
charges, then a candidate Would be hard put to destroy the presumption. A sense of realism for
me compels a declaration of nullity of a provision which on its face is patently offensive to the
Constitution.

Hence my concurrence.

TEEHANKEE, J., dissenting:

Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining
to rule on the invalidity of the first part of Section 4 of the questioned Law; and concurs with the
pronouncement that the mere filing of charges shall be prima facie cause for disqualification is
void.

I. I dissent from the majority's dismissal of the petition insofar as it upholds the discriminatory
and arbitrary provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special
disqualification on petitioner Patricio Dumlao from running for the elective local office of
governor of his home province of Nueva Vizcaya and would in effect bar the electors of his
province from electing him to said office in the January 30 elections, simply because he is a
retired provincial governor of said province "who has received payment of the retirement
benefits to which he is entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected.

To specially and peculiarly ban a 65-year old previously retired elective local official from
running for the same elective office (of governor, in this case) previously held by him and from
which he has retired is arbitrary, oppressive and unreasonable. Persons similarly situated are not
similarly treated, e.g. a retired vice-governor, mayor or councilor of 65 is entitled to run for
governor (because the disqualification is for the retiree of 65 to run for the same elective office
from which he retired) but petitioner is barred from doing so (although he may run for any other
lesser office). Both are 65 and are retirees, yet one is barred from running for the office of
governor. What is the valid distinction? Is this not an arbitrary discrimination against petitioner
who has cause to that "the aforesaid provision was concocted and designed precisely to frustrate
any bid of petition to make a political comeback as governor of Nueva Vizcaya 1 (since no
other case by a former governor similarly barred by virtue of said provision can never be cited
2 ). Is there not here, therefore a gross denial of the cardinal constitutional guarantee that equal
protection and security shall be given under the law to every person, under analogous if not
Identical circumstances?

Respondent's claim, as accepted by the majority, is that the purpose of the special
disqualification is "to infuse new blood in local governments but the classification (that would
bar 65-year old retirees from running for the same elective local office) is not rational nor
reasonable. It is not germane nor relevant to the alleged purpose of "infusing new blood" because
such "old blood" retirees may continue in local governments since they are not disqualified at all
to run for any other local elective office such as from provincial governor, vice-governor, city,
municipal or district mayor and vice- mayor to member of the Sangguniang Panlalawigan
Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective office from
which they retired.

Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches
of government are not in any manner disqualified to run for any local elective office, as in the
case of retired Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired
with full substantial retirement benefits as such judge in 1978 at age 70 and now at past 71 years
of age, is running as the official KBL candidate for governor of his province. And even in the
case of 65-year old local elective officials, they are disqualified only when they have received
payment of the retirement benefits to which they are entitled under the law (which amount to
very little, compared to retirement benefits of other executive officials and members of the
judiciary). If they have not received such retirement benefits, they are not disqualified. Certainly,
their disqualification or non-disqualification and consequent classification as "old blood" or
"new blood" cannot hinge on such an irrelevant question of whether or not they have received
their retirement benefits.

The classification is patently arbitrary and unreasonable and is not based on substantial
distinctions which make for real differences that would justify the special disqualification of
petitioner, which, it is claimed, "is based on a presumption that elective local officials who have
retired and are of advanced age cannot discharge the functions of the office they seek as those
who are differently situated." 3 Such presumption is sheer conjecture. The mere fact that a
candidate is less than 65 or has "young or new blood" does not mean that he would be more
efficient, effective and competent than a mature 65year old like petition er who has had
experience on the job and who was observed at the hearing to appear to be most physically fit.
Sufice it to city the outstanding case of the incumbent ebullient Minister of Foreign Affairs,
General Carlos P. Romulo, who was elected a 80 as a member of the Interim Batasan Pambansa
and who has just this month completed 81 years of age and has been hailed by the President
himself as "the best foreign minister the Republic has ever had

Age has simply just never been a yardstick for qualification or disqualification. Al. the most, a
minimum age to hold public office has been required as a qualification to insure a modicum of
maturity 'now reduced to 21 years in the present batas), but no maximum age has ever been
imposed as a disqualification for elect public office since the right and win of the people to elect
the candidate of their choice for any elective office, no matter his age has always been
recognized as supreme.

The disqualification in question therefore is grossly violative of the equal protection clause
which mandates that all persons subjected to legislation shall be treated alike, under like
circumstances and conditions, both in the privileges conferred and in the liabilities imposed. The
guarantee is meant to proscribe undue favor and individual or class privilege on the one hand and
hostile discrimination and the oppression of in quality on the other. The questioned provision
should therefore at the least be declared invalid in its application insofar as it would disqualify
petitioner from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated.
Where no valid distinction could be made as to the relevant conditions that call for consideration,
there should be none as to the privileges conferred and the liabilities imposed. There can be no
undue favoritism or partiality on the one hand or hostility on the other. Arbitrary selection and
discrimination against persons in thus ruled out. For the principle is that equal protection and
security shall be given to every person under circumstances, which if not Identical are analogous.
If law be looked upon in terms of burden or charges, those that full within a class should be
treated in the same fashion, whatever restrictions cast on some in the group equally binding on
the rest." 4

Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C,
section 9(1) of the 1973 Constitution that Bona fide candidates for any public office shall be free
from any form of harassment and discrimination.

II. I concur with the majority's declaration of invalidity of the portion of the second paragraph of
Section 4 of Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion,
insurrection, rebellion or other similar crimes before a civil court or military tribunal after
preliminary investigation prima facie evidence of the fact of commission of an act of disloyalty
to the State on the part of the candidate and disqualify him from his candidacy. Such a provision
could be the most insidious weapon to disqualify bona fide candidates who seem to be headed
for election and places in the hands of the military and civil prosecutors a dangerous and
devastating weapon of cutting off any candidate who may not be to their filing through the filing
of last-hour charges against him.

I also concur with the pronouncement made in the majority decision that in order that a judgment
of conviction may be deemed "as conclusive evidence" of the candidate's disloyalty to the State
and of his disqualification from office, such judgment of conviction must be final and
unappealable. This is so specifically provided in Section 22 of the 1978 Election Code. 5
Otherwise, the questioned provision would deny the bona fide candidate substantive due process
and would be grossly violative of his constitutional right of presumption of innocence and of the
above-quoted provision of the 1973 Constitution protecting candidates for public office from any
form of harassment and discrimination.

ADDENDUM

When the case was voted upon a second time last January 21st, there appeared to be a majority in
favor of the declarations and pronouncements above referred to in the two preceding paragraphs,
in view of the urgency of the matter and the evil sought to be avoided. However, as of this
writing, January 23, 1980 in the afternoon, such majority seems to have been dissipated by the
view that the action to nullify such second paragraph of section 4 of the Batas in question is
premature and has not been properly submitted for ajudication under the strict procedural
require . If this be the case, my above views, termed as concurrences, should be taken as dissents
against the majority action.

CONSTI PROVISIONS
Section 6. No candidate who has lost in any election shall, within one 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.
Section 7. No elective official shall be eligible for appointment or designation in any capacity to
any public office or position during his tenure.
Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision, agency
or instrumentality thereof, including Government-owned or controlled corporations or their
subsidiaries.


Section 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not, during his tenure, be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or
Comment [l19]: Article IX-B
Comment [l20]: ART. VII section 13 in relation to
CIVIL LIBERTIES UNION VS ECECUTIVE SECRETARY
heads of bureaus or offices, including government-owned or controlled corporations and their
subsidiaries.

CIVIL LIBERTIES UNION VS EXECUTIVE SECRETARY
G.R. No. 83896 February 22, 1991

CIVIL LIBERTIES UNION, petitioner,
vs.
THE EXECUTIVE SECRETARY, respondent.

G.R. No. 83815 February 22, 1991

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

Ignacio P. Lacsina, Luis R. Mauricio, Antonio R. Quintos and Juan T. David for petitioners in
83896.

Antonio P. Coronel for petitioners in 83815.



FERNAN, C.J.:p

These two (2) petitions were consolidated per resolution dated August 9, 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.

Sec. 2. If a member of the cabinet, undersecretary or assistant secretary or other appointive
official of the Executive Department holds more positions than what is allowed in Section 1
hereof, they (sic) must relinquish the excess position in favor of the subordinate official who is
next in rank, but in no case shall any official hold more than two positions other than his primary
position.

Sec. 3. In order to fully protect the interest of the government in government-owned or
controlled corporations, at least one-third (1/3) of the members of the boards of such corporation
should either be a secretary, or undersecretary, or assistant secretary.

Petitioners maintain that this Executive Order which, in effect, allows members of the Cabinet,
their undersecretaries and assistant secretaries to hold other government offices or positions in
addition to their primary positions, albeit subject to the limitation therein imposed, runs counter
to Section 13, Article VII of the 1987 Constitution, 2 which provides as follows:

Sec. 13. The President, Vice-President, the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in this Constitution, hold any other office or
employment during their tenure. They shall not, during said tenure, directly or indirectly practice
any other profession, participate in any business, or be financially interested in any contract with,
or in any franchise, or special privilege granted by the Government or any subdivision, agency,
or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of interest in the conduct of their office.

It is alleged that the above-quoted Section 13, Article VII prohibits public respondents, as
members of the Cabinet, along with the other public officials enumerated in the list attached to
the petitions as Annex "C" in G.R. No.
83815 3 and as Annex "B" in G.R. No. 83896 4 from holding any other office or employment
during their tenure. In addition to seeking a declaration of the unconstitutionality of Executive
Order No. 284, petitioner Anti-Graft League of the Philippines further seeks in G.R. No. 83815
the issuance of the extraordinary writs of prohibition and mandamus, as well as a temporary
restraining order directing public respondents therein to cease and desist from holding, in
addition to their primary positions, dual or multiple positions other than those authorized by the
1987 Constitution and from receiving any salaries, allowances, per diems and other forms of
privileges and the like appurtenant to their questioned positions, and compelling public
respondents to return, reimburse or refund any and all amounts or benefits that they may have
received from such positions.

Specifically, petitioner Anti-Graft League of the Philippines charges that notwithstanding the
aforequoted "absolute and self-executing" provision of the 1987 Constitution, then Secretary of
Justice Sedfrey Ordoez, construing Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B, rendered on July 23, 1987 Opinion No. 73, series of 1987, 5 declaring that Cabinet
members, their deputies (undersecretaries) and assistant secretaries may hold other public office,
including membership in the boards of government corporations: (a) when directly provided for
in the Constitution as in the case of the Secretary of Justice who is made an ex-officio member of
the Judicial and Bar Council under Section 8, paragraph 1, Article VIII; or (b) if allowed by law;
or (c) if allowed by the primary functions of their respective positions; and that on the basis of
this Opinion, the President of the Philippines, on July 25, 1987 or two (2) days before Congress
convened on July 27, 1987: promulgated Executive Order No. 284. 6

Petitioner Anti-Graft League of the Philippines objects to both DOJ Opinion No. 73 and
Executive Order No. 284 as they allegedly "lumped together" Section 13, Article VII and the
general provision in another article, Section 7, par. (2), Article I-XB. This "strained linkage"
between the two provisions, each addressed to a distinct and separate group of public officers
one, the President and her official family, and the other, public servants in general allegedly
"abolished the clearly separate, higher, exclusive, and mandatory constitutional rank assigned to
the prohibition against multiple jobs for the President, the Vice-President, the members of the
Cabinet, and their deputies and subalterns, who are the leaders of government expected to lead
by example." 7 Article IX-B, Section 7, par. (2) 8 provides:

Sec. 7. . . . . .

Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the government or any subdivision, agency
or instrumentality thereof, including government-owned or controlled corporations or their
subsidiaries.

The Solicitor General counters that Department of Justice DOJ Opinion No. 73, series of 1987,
as further elucidated and clarified by DOJ Opinion No. 129, series of 1987 9 and DOJ Opinion
No. 155, series of 1988, 10 being the first official construction and interpretation by the
Secretary of Justice of Section 13, Article VII and par. (2) of Section 7, Article I-XB of the
Constitution, involving the same subject of appointments or designations of an appointive
executive official to positions other than his primary position, is "reasonably valid and
constitutionally firm," and that Executive Order No. 284, promulgated pursuant to DOJ Opinion
No. 73, series of 1987 is consequently constitutional. It is worth noting that DOJ Opinion No.
129, series of 1987 and DOJ Opinion No. 155, series of 1988 construed the limitation imposed
by E.O. No. 284 as not applying to ex-officio positions or to positions which, although not so
designated as ex-officio are allowed by the primary functions of the public official, but only to
the holding of multiple positions which are not related to or necessarily included in the position
of the public official concerned (disparate positions).

In sum, the constitutionality of Executive Order No. 284 is being challenged by petitioners on
the principal submission that it adds exceptions to Section 13, Article VII other than those
provided in the Constitution. According to petitioners, by virtue of the phrase "unless otherwise
provided in this Constitution," the only exceptions against holding any other office or
employment in Government are those provided in the Constitution, namely: (1) The Vice-
President may be appointed as a Member of the Cabinet under Section 3, par. (2), Article VII
thereof; and (2) the Secretary of Justice is an ex-officio member of the Judicial and Bar Council
by virtue of Section 8 (1), Article VIII.

Petitioners further argue that the exception to the prohibition in Section 7, par. (2), Article I-XB
on the Civil Service Commission applies to officers and employees of the Civil Service in
general and that said exceptions do not apply and cannot be extended to Section 13, Article VII
which applies specifically to the President, Vice-President, Members of the Cabinet and their
deputies or assistants.

There is no dispute that the prohibition against the President, Vice-President, the members of the
Cabinet and their deputies or assistants from holding dual or multiple positions in the
Government admits of certain exceptions. The disagreement between petitioners and public
respondents lies on the constitutional basis of the exception. Petitioners insist that because of the
phrase "unless otherwise provided in this Constitution" used in Section 13 of Article VII, the
exception must be expressly provided in the Constitution, as in the case of the Vice-President
being allowed to become a Member of the Cabinet under the second paragraph of Section 3,
Article VII or the Secretary of Justice being designated an ex-officio member of the Judicial and
Bar Council under Article VIII, Sec. 8 (1). Public respondents, on the other hand, maintain that
the phrase "unless otherwise provided in the Constitution" in Section 13, Article VII makes
reference to Section 7, par. (2), Article I-XB insofar as the appointive officials mentioned therein
are concerned.

The threshold question therefore is: does the prohibition in Section 13, Article VII of the 1987
Constitution insofar as Cabinet members, their deputies or assistants are concerned admit of the
broad exceptions made for appointive officials in general under Section 7, par. (2), Article I-XB
which, for easy reference is quoted anew, thus: "Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall hold any other office or
employment in the Government or any subdivision, agency or instrumentality thereof, including
government-owned or controlled corporation or their subsidiaries."

We rule in the negative.

A foolproof yardstick in constitutional construction is the intention underlying the provision
under consideration. Thus, it has been held that the Court in construing a Constitution should
bear in mind the object sought to be accomplished by its adoption, and the evils, if any, sought to
be prevented or remedied. A doubtful provision will be examined in the light of the history of the
times, and the condition and circumstances under which the Constitution was framed. The object
is to ascertain the reason which induced the framers of the Constitution to enact the particular
provision and the purpose sought to be accomplished thereby, in order to construe the whole as
to make the words consonant to that reason and calculated to effect that purpose. 11

The practice of designating members of the Cabinet, their deputies and assistants as members of
the governing bodies or boards of various government agencies and instrumentalities, including
government-owned and controlled corporations, became prevalent during the time legislative
powers in this country were exercised by former President Ferdinand E. Marcos pursuant to his
martial law authority. There was a proliferation of newly-created agencies, instrumentalities and
government-owned and controlled corporations created by presidential decrees and other modes
of presidential issuances where Cabinet members, their deputies or assistants were designated to
head or sit as members of the board with the corresponding salaries, emoluments, per diems,
allowances and other perquisites of office. Most of these instrumentalities have remained up to
the present time.

This practice of holding multiple offices or positions in the government soon led to abuses by
unscrupulous public officials who took advantage of this scheme for purposes of self-enrichment.
In fact, the holding of multiple offices in government was strongly denounced on the floor of the
Batasang Pambansa. 12 This condemnation came in reaction to the published report of the
Commission on Audit, entitled "1983 Summary Annual Audit Report on: Government-Owned
and Controlled Corporations, Self-Governing Boards and Commissions" which carried as its
Figure No. 4 a "Roaster of Membership in Governing Boards of Government-Owned and
Controlled Corporations as of December 31, 1983."

Particularly odious and revolting to the people's sense of propriety and morality in government
service were the data contained therein that Roberto V. Ongpin was a member of the governing
boards of twenty-nine (29) governmental agencies, instrumentalities and corporations; Imelda R.
Marcos of twenty-three (23); Cesar E.A. Virata of twenty-two (22); Arturo R. Tanco, Jr. of
fifteen (15); Jesus S. Hipolito and Geronimo Z. Velasco, of fourteen each (14); Cesar C. Zalamea
of thirteen (13); Ruben B. Ancheta and Jose A. Roo of twelve (12) each; Manuel P. Alba,
Gilberto O. Teodoro, and Edgardo Tordesillas of eleven (11) each; and Lilia Bautista and
Teodoro Q. Pea of ten (10) each. 13

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the
Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming
sentiment of the people that the 1986 Constitutional Commission, convened as it was after the
people successfully unseated former President Marcos, should draft into its proposed
Constitution the provisions under consideration which are envisioned to remedy, if not correct,
the evils that flow from the holding of multiple governmental offices and employment. In fact, as
keenly observed by Mr. Justice Isagani A. Cruz during the deliberations in these cases, one of the
strongest selling points of the 1987 Constitution during the campaign for its ratification was the
assurance given by its proponents that the scandalous practice of Cabinet members holding
multiple positions in the government and collecting unconscionably excessive compensation
therefrom would be discontinued.

But what is indeed significant is the fact that although Section 7, Article I-XB already contains a
blanket prohibition against the holding of multiple offices or employment in the government
subsuming both elective and appointive public officials, the Constitutional Commission should
see it fit to formulate another provision, Sec. 13, Article VII, specifically prohibiting the
President, Vice-President, members of the Cabinet, their deputies and assistants from holding
any other office or employment during their tenure, unless otherwise provided in the Constitution
itself.

Evidently, from this move as well as in the different phraseologies of the constitutional
provisions in question, the intent of the framers of the Constitution was to impose a stricter
prohibition on the President and his official family in so far as holding other offices or
employment in the government or elsewhere is concerned.

Moreover, such intent is underscored by a comparison of Section 13, Article VII with other
provisions of the Constitution on the disqualifications of certain public officials or employees
from holding other offices or employment. Under Section 13, Article VI, "(N)o Senator or
Member of the House of Representatives may hold any other office or employment in the
Government . . .". Under Section 5(4), Article XVI, "(N)o member of the armed forces in the
active service shall, at any time, be appointed in any capacity to a civilian position in the
Government, including government-owned or controlled corporations or any of their
subsidiaries." Even Section 7 (2), Article IX-B, relied upon by respondents provides "(U)nless
otherwise allowed by law or by the primary functions of his position, no appointive official shall
hold any other office or employment in the Government."

It is quite notable that in all these provisions on disqualifications to hold other office or
employment, the prohibition pertains to an office or employment in the government and
government-owned or controlled corporations or their subsidiaries. In striking contrast is the
wording of Section 13, Article VII which states that "(T)he President, Vice-President, the
Members of the Cabinet, and their deputies or assistants shall not, unless otherwise provided in
this Constitution, hold any other office or employment during their tenure." In the latter
provision, the disqualification is absolute, not being qualified by the phrase "in the Government."
The prohibition imposed on the President and his official family is therefore all-embracing and
covers both public and private office or employment.

Going further into Section 13, Article VII, the second sentence provides: "They shall not, during
said tenure, directly or indirectly, practice any other profession, participate in any business, or be
financially interested in any contract with, or in any franchise, or special privilege granted by the
Government or any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries." These sweeping, all-embracing prohibitions
imposed on the President and his official family, which prohibitions are not similarly imposed on
other public officials or employees such as the Members of Congress, members of the civil
service in general and members of the armed forces, are proof of the intent of the 1987
Constitution to treat the President and his official family as a class by itself and to impose upon
said class stricter prohibitions.

Such intent of the 1986 Constitutional Commission to be stricter with the President and his
official family was also succinctly articulated by Commissioner Vicente Foz after Commissioner
Regalado Maambong noted during the floor deliberations and debate that there was no symmetry
between the Civil Service prohibitions, originally found in the General Provisions and the
anticipated report on the Executive Department. Commissioner Foz Commented, "We actually
have to be stricter with the President and the members of the Cabinet because they exercise more
powers and, therefore, more cheeks and restraints on them are called for because there is more
possibility of abuse in their case." 14

Thus, while all other appointive officials in the civil service are allowed to hold other office or
employment in the government during their tenure when such is allowed by law or by the
primary functions of their positions, members of the Cabinet, their deputies and assistants may
do so only when expressly authorized by the Constitution itself. In other words, Section 7,
Article I-XB is meant to lay down the general rule applicable to all elective and appointive
public officials and employees, while Section 13, Article VII is meant to be the exception
applicable only to the President, the Vice- President, Members of the Cabinet, their deputies and
assistants.

This being the case, the qualifying phrase "unless otherwise provided in this Constitution" in
Section 13, Article VII cannot possibly refer to the broad exceptions provided under Section 7,
Article I-XB of the 1987 Constitution. To construe said qualifying phrase as respondents would
have us do, would render nugatory and meaningless the manifest intent and purpose of the
framers of the Constitution to impose a stricter prohibition on the President, Vice-President,
Members of the Cabinet, their deputies and assistants with respect to holding other offices or
employment in the government during their tenure. Respondents' interpretation that Section 13 of
Article VII admits of the exceptions found in Section 7, par. (2) of Article IX-B would obliterate
the distinction so carefully set by the framers of the Constitution as to when the high-ranking
officials of the Executive Branch from the President to Assistant Secretary, on the one hand, and
the generality of civil servants from the rank immediately below Assistant Secretary downwards,
on the other, may hold any other office or position in the government during their tenure.

Moreover, respondents' reading of the provisions in question would render certain parts of the
Constitution inoperative. This observation applies particularly to the Vice-President who, under
Section 13 of Article VII is allowed to hold other office or employment when so authorized by
the Constitution, but who as an elective public official under Sec. 7, par. (1) of Article I-XB is
absolutely ineligible "for appointment or designation in any capacity to any public office or
position during his tenure." Surely, to say that the phrase "unless otherwise provided in this
Constitution" found in Section 13, Article VII has reference to Section 7, par. (1) of Article I-XB
would render meaningless the specific provisions of the Constitution authorizing the Vice-
President to become a member of the Cabinet, 15 and to act as President without relinquishing
the Vice-Presidency where the President shall not nave been chosen or fails to qualify. 16 Such
absurd consequence can be avoided only by interpreting the two provisions under consideration
as one, i.e., Section 7, par. (1) of Article I-XB providing the general rule and the other, i.e.,
Section 13, Article VII as constituting the exception thereto. In the same manner must Section 7,
par. (2) of Article I-XB be construed vis-a-vis Section 13, Article VII.

It is a well-established rule in Constitutional construction that no one provision of the
Constitution is to be separated from all the others, to be considered alone, but that all the
provisions bearing upon a particular subject are to be brought into view and to be so interpreted
as to effectuate the great purposes of the instrument. 17 Sections bearing on a particular subject
should be considered and interpreted together as to effectuate the whole purpose of the
Constitution 18 and one section is not to be allowed to defeat another, if by any reasonable
construction, the two can be made to stand together. 19

In other words, the court must harmonize them, if practicable, and must lean in favor of a
construction which will render every word operative, rather than one which may make the words
idle and nugatory. 20

Since the evident purpose of the framers of the 1987 Constitution is to impose a stricter
prohibition on the President, Vice-President, members of the Cabinet, their deputies and
assistants with respect to holding multiple offices or employment in the government during their
tenure, the exception to this prohibition must be read with equal severity. On its face, the
language of Section 13, Article VII is prohibitory so that it must be understood as intended to be
a positive and unequivocal negation of the privilege of holding multiple government offices or
employment. Verily, wherever the language used in the constitution is prohibitory, it is to be
understood as intended to be a positive and unequivocal negation. 21 The phrase "unless
otherwise provided in this Constitution" must be given a literal interpretation to refer only to
those particular instances cited in the Constitution itself, to wit: the Vice-President being
appointed as a member of the Cabinet under Section 3, par. (2), Article VII; or acting as
President in those instances provided under Section 7, pars. (2) and (3), Article VII; and, the
Secretary of Justice being ex-officio member of the Judicial and Bar Council by virtue of Section
8 (1), Article VIII.

The prohibition against holding dual or multiple offices or employment under Section 13, Article
VII of the Constitution must not, however, be construed as applying to posts occupied by the
Executive officials specified therein without additional compensation in an ex-officio capacity as
provided by law and as required 22 by the primary functions of said officials' office. The reason
is that these posts do no comprise "any other office" within the contemplation of the
constitutional prohibition but are properly an imposition of additional duties and functions on
said officials. 23 To characterize these posts otherwise would lead to absurd consequences,
among which are: The President of the Philippines cannot chair the National Security Council
reorganized under Executive Order No. 115 (December 24, 1986). Neither can the Vice-
President, the Executive Secretary, and the Secretaries of National Defense, Justice, Labor and
Employment and Local Government sit in this Council, which would then have no reason to
exist for lack of a chairperson and members. The respective undersecretaries and assistant
secretaries, would also be prohibited.

The Secretary of Labor and Employment cannot chair the Board of Trustees of the National
Manpower and Youth Council (NMYC) or the Philippine Overseas Employment Administration
(POEA), both of which are attached to his department for policy coordination and guidance.
Neither can his Undersecretaries and Assistant Secretaries chair these agencies.

The Secretaries of Finance and Budget cannot sit in the Monetary
Board. 24 Neither can their respective undersecretaries and assistant secretaries. The Central
Bank Governor would then be assisted by lower ranking employees in providing policy direction
in the areas of money, banking and credit. 25

Indeed, the framers of our Constitution could not have intended such absurd consequences. A
Constitution, viewed as a continuously operative charter of government, is not to be interpreted
as demanding the impossible or the impracticable; and unreasonable or absurd consequences, if
possible, should be avoided. 26

To reiterate, the prohibition under Section 13, Article VII is not to be interpreted as covering
positions held without additional compensation in ex-officio capacities as provided by law and as
required by the primary functions of the concerned official's office. The term ex-officio means
"from office; by virtue of office." It refers to an "authority derived from official character merely,
not expressly conferred upon the individual character, but rather annexed to the official
position." Ex-officio likewise denotes an "act done in an official character, or as a consequence
of office, and without any other appointment or authority than that conferred by the office." 27
An ex-officio member of a board is one who is a member by virtue of his title to a certain office,
and without further warrant or appointment. 28 To illustrate, by express provision of law, the
Secretary of Transportation and Communications is the ex-officio Chairman of the Board of the
Philippine Ports Authority, 29 and the Light Rail Transit Authority. 30

The Court had occasion to explain the meaning of an ex-officio position in Rafael vs.
Embroidery and Apparel Control and Inspection Board, 31 thus: "An examination of section 2 of
the questioned statute (R.A. 3137) reveals that for the chairman and members of the Board to
qualify they need only be designated by the respective department heads. With the exception of
the representative from the private sector, they sit ex-officio. In order to be designated they must
already be holding positions in the offices mentioned in the law. Thus, for instance, one who
does not hold a previous appointment in the Bureau of Customs, cannot, under the act, be
designated a representative from that office. The same is true with respect to the representatives
from the other offices. No new appointments are necessary. This is as it should be, because the
representatives so designated merely perform duties in the Board in addition to those already
performed under their original appointments." 32

The term "primary" used to describe "functions" refers to the order of importance and thus means
chief or principal function. The term is not restricted to the singular but may refer to the plural.
33 The additional duties must not only be closely related to, but must be required by the official's
primary functions. Examples of designations to positions by virtue of one's primary functions are
the Secretaries of Finance and Budget sitting as members of the Monetary Board, and the
Secretary of Transportation and Communications acting as Chairman of the Maritime Industry
Authority 34 and the Civil Aeronautics Board.

If the functions required to be performed are merely incidental, remotely related, inconsistent,
incompatible, or otherwise alien to the primary function of a cabinet official, such additional
functions would fall under the purview of "any other office" prohibited by the Constitution. An
example would be the Press Undersecretary sitting as a member of the Board of the Philippine
Amusement and Gaming Corporation. The same rule applies to such positions which confer on
the cabinet official management functions and/or monetary compensation, such as but not
limited to chairmanships or directorships in government-owned or controlled corporations and
their subsidiaries.

Mandating additional duties and functions to the President, Vice-President, Cabinet Members,
their deputies or assistants which are not inconsistent with those already prescribed by their
offices or appointments by virtue of their special knowledge, expertise and skill in their
respective executive offices is a practice long-recognized in many jurisdictions. It is a practice
justified by the demands of efficiency, policy direction, continuity and coordination among the
different offices in the Executive Branch in the discharge of its multifarious tasks of executing
and implementing laws affecting national interest and general welfare and delivering basic
services to the people. It is consistent with the power vested on the President and his alter egos,
the Cabinet members, to have control of all the executive departments, bureaus and offices and
to ensure that the laws are faithfully executed. 35 Without these additional duties and functions
being assigned to the President and his official family to sit in the governing bodies or boards of
governmental agencies or instrumentalities in an ex-officio capacity as provided by law and as
required by their primary functions, they would be supervision, thereby deprived of the means
for control and resulting in an unwieldy and confused bureaucracy.

It bears repeating though that in order that such additional duties or functions may not transgress
the prohibition embodied in Section 13, Article VII of the 1987 Constitution, such additional
duties or functions must be required by the primary functions of the official concerned, who is to
perform the same in an ex-officio capacity as provided by law, without receiving any additional
compensation therefor.

The ex-officio position being actually and in legal contemplation part of the principal office, it
follows that the official concerned has no right to receive additional compensation for his
services in the said position. The reason is that these services are already paid for and covered by
the compensation attached to his principal office. It should be obvious that if, say, the Secretary
of Finance attends a meeting of the Monetary Board as an ex-officio member thereof, he is
actually and in legal contemplation performing the primary function of his principal office in
defining policy in monetary and banking matters, which come under the jurisdiction of his
department. For such attendance, therefore, he is not entitled to collect any extra compensation,
whether it be in the form of a per them or an honorarium or an allowance, or some other such
euphemism. By whatever name it is designated, such additional compensation is prohibited by
the Constitution.

It is interesting to note that during the floor deliberations on the proposal of Commissioner
Christian Monsod to add to Section 7, par. (2), Article IX-B, originally found as Section 3 of the
General Provisions, the exception "unless required by the functions of his position," 36 express
reference to certain high-ranking appointive public officials like members of the Cabinet were
made. 37 Responding to a query of Commissioner Blas Ople, Commissioner Monsod pointed out
that there are instances when although not required by current law, membership of certain high-
ranking executive officials in other offices and corporations is necessary by reason of said
officials' primary functions. The example given by Commissioner Monsod was the Minister of
Trade and Industry. 38

While this exchange between Commissioners Monsod and Ople may be used as authority for
saying that additional functions and duties flowing from the primary functions of the official may
be imposed upon him without offending the constitutional prohibition under consideration, it
cannot, however, be taken as authority for saying that this exception is by virtue of Section 7, par.
(2) of Article I-XB. This colloquy between the two Commissioners took place in the plenary
session of September 27, 1986. Under consideration then was Section 3 of Committee
Resolution No. 531 which was the proposed article on General Provisions. 39 At that time, the
article on the Civil Service Commission had been approved on third reading on July 22, 1986, 40
while the article on the Executive Department, containing the more specific prohibition in
Section 13, had also been earlier approved on third reading on August 26, 1986. 41 It was only
after the draft Constitution had undergone reformatting and "styling" by the Committee on Style
that said Section 3 of the General Provisions became Section 7, par. (2) of Article IX-B and
reworded "Unless otherwise allowed by law or by the primary functions of his position. . . ."

What was clearly being discussed then were general principles which would serve as
constitutional guidelines in the absence of specific constitutional provisions on the matter. What
was primarily at issue and approved on that occasion was the adoption of the qualified and
delimited phrase "primary functions" as the basis of an exception to the general rule covering all
appointive public officials. Had the Constitutional Commission intended to dilute the specific
prohibition in said Section 13 of Article VII, it could have re-worded said Section 13 to conform
to the wider exceptions provided in then Section 3 of the proposed general Provisions, later
placed as Section 7, par. (2) of Article IX-B on the Civil Service Commission.

That this exception would in the final analysis apply also to the President and his official family
is by reason of the legal principles governing additional functions and duties of public officials
rather than by virtue of Section 7, par. 2, Article IX-B At any rate, we have made it clear that
only the additional functions and duties "required," as opposed to "allowed," by the primary
functions may be considered as not constituting "any other office."

While it is permissible in this jurisdiction to consult the debates and proceedings of the
constitutional convention in order to arrive at the reason and purpose of the resulting
Constitution, resort thereto may be had only when other guides fail 42 as said proceedings are
powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light as to the views of the large
majority who did not talk, much less of the mass of our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We think it safer to construe the constitution
from what appears upon its face." 43 The proper interpretation therefore depends more on how it
was understood by the people adopting it than in the framers's understanding thereof. 44

It being clear, as it was in fact one of its best selling points, that the 1987 Constitution seeks to
prohibit the President, Vice-President, members of the Cabinet, their deputies or assistants from
holding during their tenure multiple offices or employment in the government, except in those
cases specified in the Constitution itself and as above clarified with respect to posts held without
additional compensation in an ex-officio capacity as provided by law and as required by the
primary functions of their office, the citation of Cabinet members (then called Ministers) as
examples during the debate and deliberation on the general rule laid down for all appointive
officials should be considered as mere personal opinions which cannot override the constitution's
manifest intent and the people' understanding thereof.

In the light of the construction given to Section 13, Article VII in relation to Section 7, par. (2),
Article IX-B of the 1987 Constitution, Executive Order No. 284 dated July 23, 1987 is
unconstitutional. Ostensibly restricting the number of positions that Cabinet members,
undersecretaries or assistant secretaries may hold in addition to their primary position to not
more than two (2) positions in the government and government corporations, Executive Order
No. 284 actually allows them to hold multiple offices or employment in direct contravention of
the express mandate of Section 13, Article VII of the 1987 Constitution prohibiting them from
doing so, unless otherwise provided in the 1987 Constitution itself.

The Court is alerted by respondents to the impractical consequences that will result from a strict
application of the prohibition mandated under Section 13, Article VII on the operations of the
Government, considering that Cabinet members would be stripped of their offices held in an ex-
officio capacity, by reason of their primary positions or by virtue of legislation. As earlier
clarified in this decision, ex-officio posts held by the executive official concerned without
additional compensation as provided by law and as required by the primary functions of his
office do not fall under the definition of "any other office" within the contemplation of the
constitutional prohibition. With respect to other offices or employment held by virtue of
legislation, including chairmanships or directorships in government-owned or controlled
corporations and their subsidiaries, suffice it to say that the feared impractical consequences are
more apparent than real. Being head of an executive department is no mean job. It is more than a
full-time job, requiring full attention, specialized knowledge, skills and expertise. If maximum
benefits are to be derived from a department head's ability and expertise, he should be allowed to
attend to his duties and responsibilities without the distraction of other governmental offices or
employment. He should be precluded from dissipating his efforts, attention and energy among
too many positions of responsibility, which may result in haphazardness and inefficiency. Surely
the advantages to be derived from this concentration of attention, knowledge and expertise,
particularly at this stage of our national and economic development, far outweigh the benefits, if
any, that may be gained from a department head spreading himself too thin and taking in more
than what he can handle.

Finding Executive Order No. 284 to be constitutionally infirm, the court hereby orders
respondents Secretary of Environment and Natural Resources Fulgencio Factoran, Jr., Secretary
of Local Government 45 Luis Santos, Secretary of National Defense Fidel V. Ramos, Secretary
of Health Alfredo R.A. Bengzon and Secretary of the Budget Guillermo Carague to immediately
relinquish their other offices or employment, as herein defined, in the government, including
government-owned or controlled corporations and their subsidiaries. With respect to the other
named respondents, the petitions have become moot and academic as they are no longer
occupying the positions complained of.

During their tenure in the questioned positions, respondents may be considered de facto officers
and as such entitled to emoluments for actual services rendered. 46 It has been held that "in cases
where there is no de jure, officer, a de facto officer, who, in good faith has had possession of the
office and has discharged the duties pertaining thereto, is legally entitled to the emoluments of
the office, and may in an appropriate action recover the salary, fees and other compensations
attached to the office. This doctrine is, undoubtedly, supported on equitable grounds since it
seems unjust that the public should benefit by the services of an officer de facto and then be
freed from all liability to pay any one for such services. 47 Any per diem, allowances or other
emoluments received by the respondents by virtue of actual services rendered in the questioned
positions may therefore be retained by them.

WHEREFORE, subject to the qualification above-stated, the petitions are GRANTED. Executive
Order No. 284 is hereby declared null and void and is accordingly set aside.

SO ORDERED.

Section 13. No Senator or Member of the House of Representatives may 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, during his term without
forfeiting his seat. Neither shall he be appointed to any office which may have been created or
the emoluments thereof increased during the term for which he was elected.

ADAZA VS PACANA
G.R. No. L-68159 March 18, 1985
Comment [l21]: ARTICLE VI SECTION 13 in
relation to ADAZA VS PACANA
Comment [l22]: ADAZA VS PACANA

HOMOBONO ADAZA, petitioner,
vs.
FERNANDO PACANA, JR., respondent

ESCOLIN, J.:

The issues posed for determination in this petition for prohibition with prayer for a writ of
preliminary injunction and/or restraining order are: [1] whether or not a provincial governor who
was elected and had qualified as a Mambabatas Pambansa [MP] can exercise and discharge the
functions of both offices simultaneously; and [2] whether or not a vice-governor who ran for the
position of Mambabatas Pambansa, but lost, can continue serving as vice-governor and
subsequently succeed to the office of governor if the said office is vacated.

The factual background of the present controversy is as follows:

Petitioner Homobono A. Adaza was elected governor of the province of Misamis Oriental in the
January 30, 1980 elections. He took his oath of office and started discharging his duties as
provincial governor on March 3, 1980. Elected vice-governor for said province in the same
elections was respondent Fernando Pacana, Jr., who likewise qualified for and assumed said
office on March 3, 1980. Under the law, their respective terms of office would expire on March 3,
1986.

On March 27, 1984, respondent Pacana filed his certificate of candidacy for the May 14, 1984
Batasan Pambansa elections; petitioner Adaza followed suit on April 27, 1984. In the ensuing
elections, petitioner won by placing first among the candidates, while respondent lost.

Petitioner took his oath of office as Mambabatas Pambansa on July 19, 1984 1 and since then he
has discharged the functions of said office.

On July 23, 1984, respondent took his oath of office as governor of Misamis Oriental before
President Ferdinand E. Marcos, 2 and started to perform the duties of governor on July 25, 1984.

Claiming to be the lawful occupant of the governor's office, petitioner has brought this petition to
exclude respondent therefrom. He argues that he was elected to said office for a term of six years,
that he remains to be the governor of the province until his term expires on March 3, 1986 as
provided by law, and that within the context of the parliamentary system, as in France, Great
Britain and New Zealand, a local elective official can hold the position to which he had been
elected and simultaneously be an elected member of Parliament.

Petitioner further contends that respondent Pacana should be considered to have abandoned or
resigned from the position of vice-governor when he filed his certificate of candidacy for the
1984 Batas Pambansa elections; and since respondent had reverted to the status of a mere private
citizen after he lost in the Batas Pambansa elections, he could no longer continue to serve as
vice-governor, much less assume the office of governor.

1. The constitutional prohibition against a member of the Batasan Pambansa from holding any
other office or employment in the government during his tenure is clear and unambiguous.
Section 10, Article VIII of the 1973 Constitution provides as follows:

Section 10 A member of the National Assembly [now Batasan Pambansa shall not hold any other
office or employment in the government or any subdivision, agency or instrumentality thereof,
including government owned or controlled corporations, during his tenure, except that of prime
minister or member of the cabinet. ...

The language used in the above-cited section is plain, certain and free from ambiguity. The only
exceptions mentioned therein are the offices of prime minister and cabinet member. The wisdom
or expediency of the said provision is a matter which is not within the province of the Court to
determine.

A public office is a public trust. 3 It is created for the interest and the benefit of the people. As
such, a holder thereof "is subject to such regulations and conditions as the law may impose" and
"he cannot complain of any restrictions which public policy may dictate on his holding of more
than one office." 4 It is therefore of no avail to petitioner that the system of government in other
states allows a local elective official to act as an elected member of the parliament at the same
time. The dictate of the people in whom legal sovereignty lies is explicit. It provides no
exceptions save the two offices specifically cited in the above-quoted constitutional provision.
Thus, while it may be said that within the purely parliamentary system of government no
incompatibility exists in the nature of the two offices under consideration, as incompatibility is
understood in common law, the incompatibility herein present is one created by no less than the
constitution itself. In the case at bar, there is no question that petitioner has taken his oath of
office as an elected Mambabatas Pambansa and has been discharging his duties as such. In the
light of the oft-mentioned constitutional provision, this fact operated to vacate his former post
and he cannot now continue to occupy the same, nor attempt to discharge its functions.

2. The second proposition advanced by petitioner is that respondent Pacana, as a mere private
citizen, had no right to assume the governorship left vacant by petitioner's election to the Batasan
Pambansa. He maintains that respondent should be considered as having abandoned or resigned
from the vice-governorship when he filed his certificate of candidacy for the Batas Pambansa
elections. The point pressed runs afoul of Batas Pambansa Blg. 697, the law governing the
election of members of the Batasan Pambansa on May 14, 1984, Section 13[2] of which
specifically provides that "governors, mayors, members of the various sangguniang or barangay
officials shall, upon filing a certificate of candidacy, be considered on forced leave of absence
from office." Indubitably, respondent falls within the coverage of this provision, considering that
at the time he filed his certificate of candidacy for the 1984 Batasan Pambansa election he was a
member of the Sangguniang Panlalawigan as provided in Sections 204 and 205 of Batas
Pambansa Blg. 337, 5 otherwise known as the Local Government Code. The reason the position
of vice-governor was not included in Section 13[2] of BP Blg. 697 is explained by the following
interchange between Assemblymen San Juan and Davide during the deliberations on said
legislation:

MR. DAVIDE. If I was able to get correctly the proposed amendment it would cover only
governors and members of the different sanggunians? Mayor, governors?

MR. SAN JUAN. Governors, mayors, members of the various sanggunian or barangay officials.
A vice-governor is a member of the Sanggunian Panlalawigan.

MR. DAVIDE. All. Why don't we instead use the word, "Local officials?

MR. SAN JUAN. Well, Mr. Speaker, your humble representation ...

MR. DAVIDE. And, secondly, why don't we include the vice-governor, the vice-mayors?

MR. SAN JUAN. Because they are members of the Sanggunians, Mr. Speaker. They are covered
by the provision on members of sanggunian. [Record of Proceedings, February 20, 1984, p. 92,
Rollo]

Thus, when respondent reassumed the position of vice-governor after the Batas Pambansa
elections, he was acting within the law. His succession to the governorship was equally legal and
valid, the same being in accordance with Section 204[2] [a] of the same Local Government Code,
which reads as follows:

SECTION 204. Powers, Duties and Privileges:

1] x x x

2] He shall:

a] Assume the office of the governor for the unexpired term of the latter in the cases provided for
in Section 48, paragraph 1 6 of this Code;

WHEREFORE, the instant petition is hereby dismissed. No costs.

SO ORDERED.

Section 12. The Members of the Supreme Court and of other courts established by law shall not
be designated to any agency performing quasi-judicial or administrative functions.
Section 2. No member of a Constitutional Commission shall, during his tenure, hold any other
office or employment. Neither shall he engage in the practice of any profession or in the active
management or control of any business which, in any way, may be affected by the functions of
his office, nor shall he be financially interested, directly or indirectly, in any contract with, or in
any franchise or privilege granted by the Government, any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations or their subsidiaries.
Section 11. The Ombudsman and his Deputies shall serve for a term of seven years without
reappointment. They shall not be qualified to run for any office in the election immediately
succeeding their cessation from office.
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, the Chairman shall hold office for seven years, a Commissioner for five years, and
another Commissioner for three years, without reappointment. Appointment to any vacancy shall
be only for the unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity.
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, three Members shall hold office for seven years, two Members for five years, and the
last Members for three years, without reappointment. Appointment to any vacancy shall be only
for the unexpired term of the predecessor. In no case shall any Member be appointed or
designated in a temporary or acting capacity.
(2) The Chairman and the Commissioners shall be appointed by the President with the consent of
the Commission on Appointments for a term of seven years without reappointment. Of those first
appointed, the Chairman shall hold office for seven years, one Commissioner for five years, and
the other Commissioner for three years, without reappointment. Appointment to any vacancy
shall be only for the unexpired portion of the term of the predecessor. In no case shall any
Member be appointed or designated in a temporary or acting capacity.
Section 11. The Ombudsman and his Deputies shall serve for a term of seven years without
reappointment. They shall not be qualified to run for any office in the election immediately
succeeding their cessation from office.

Section 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
Comment [l23]: Article 8 section 12
Comment [l24]: Article 9(a) section 2
Comment [l25]: Article 11 section 11
Comment [l26]: Section 1(2) article 9-b
Comment [l27]: Section 1(2) article 9-c
Comment [l28]: Section 1(2) article 9-d
Comment [l29]: Section 11 Article 11 in relation
to term of office of Members of Con Com, the
ombudsman and his deputies
Comment [l30]: Article 7 section 13
employment during their tenure. They shall not, during said tenure, directly or indirectly,
practice any other profession, participate in any business, or be financially interested in any
contract with, or in any franchise, or special privilege granted by the Government or any
subdivision, agency, or instrumentality thereof, including government-owned or controlled
corporations or their subsidiaries. They shall strictly avoid conflict of interest in the conduct of
their office.

The spouse and relatives by consanguinity or affinity within the fourth civil degree of the
President shall not, during his tenure, be appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman, or as Secretaries, Undersecretaries, chairmen or
heads of bureaus or offices, including government-owned or controlled corporations and their
subsidiaries.

SELECTION OF PUBLIC OFFICE
APPOINTMENT
ARTICLE VII, CONSTITUTION
Section 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution. He shall also
appoint all other officers of the Government whose appointments are not otherwise provided for
by law, and those whom he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the Congress,
whether voluntary or compulsory, but such appointments shall be effective only until
disapproved by the Commission on Appointments or until the next adjournment of the Congress.
ARTICLE VI
Section 2. The Senate shall be composed of twenty-four Senators who shall be elected at large by
the qualified voters of the Philippines, as may be provided by law.
Section 5.
1. The House of Representatives shall be composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law, shall be elected through a party-list
system of registered national, regional, and sectoral parties or organizations.
2. The party-list representatives shall constitute twenty per centum of the total number of
representatives including those under the party list. For three consecutive terms after the
ratification of this Constitution, one-half of the seats allocated to party-list representatives
shall be filled, as provided by law, by selection or election from the labor, peasant, urban
poor, indigenous cultural communities, women, youth, and such other sectors as may be
provided by law, except the religious sector.
3. Each legislative district shall comprise, as far as practicable, contiguous, compact, and
adjacent territory. Each city with a population of at least two hundred fifty thousand, or
each province, shall have at least one representative.
4. Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this section.
RA 7160
CHAPTER II
Provincial Officials in General
Section 463. Officials of the Provincial Government.
(a) There shall be in each province a governor, a vice-governor, members of the
sangguniang panlalawigan, a secretary to the sangguniang panlalawigan, a provincial
treasurer, a provincial assessor, a provincial accountant, a provincial engineer, a
provincial budget officer, a provincial planning and development coordinator, a
provincial legal officer, a provincial administrator, a provincial health officer, a
provincial social welfare and development officer, a provincial general services officer, a
provincial agriculturist, and a provincial veterinarian.
(b) In addition thereto, the governor may appoint a provincial population officer, a
provincial natural resources and environment officer, a provincial cooperative officer, a
provincial architect, and a provincial information officer.
The appointment of a provincial population officer shall be optional in the province:
Provided, however, That provinces which have existing population offices shall continue
to maintain such offices for a period of five (5) years from the date of the effectivity of
this Code, after which said offices shall become optional.
(c) The sangguniang panlalawigan may:
(1) Maintain existing offices not mentioned in subsections (a) and (b) hereof;
(2) Create such other offices as may be necessary to carry out the purposes of the
provincial government; or
(3) Consolidate the functions of any office with those of another in the interest of
efficiency and economy;
(d) Unless otherwise provided herein, heads of departments and offices shall be
appointed by the governor with the concurrence of the majority of all the
sangguniang panlalawigan members, subject to civil service law, rules and
regulations. The sangguniang panlalawigan shall act on the appointment within
fifteen (15) days from the date of its submission; otherwise the same shall be
deemed confirmed;
(e) Elective and appointive provincial officials shall receive such compensation,
allowances, and other emoluments as may be determined by law or ordinance, subject to
the budgetary limitations on personal services prescribed under Title Five, Book II of this
Code: Provided, That, no increase in compensation shall take effect until after the
expiration of the full term of all the elective officials approving such increase.
CHAPTER II
City Officials in General
Section 454. Officials of the City Government.
(a) There shall be in each city a mayor, a vice-mayor, sangguniang panlungsod members,
a secretary to the sangguniang panlungsod, a city treasurer, a city assessor, a city
accountant, a city budget officer, a city planning and development coordinator, a city
engineer, a city health officer, a city civil registrar, a city administrator, a city legal
officer, a city veterinarian, a city social welfare and development officer, and a city
general services officer.
(b) In addition thereto, the city mayor may appoint a city architect, a city information
officer, a city agriculturist, a city population officer, a city environment and natural
resources officer, and a city cooperatives officer.
The appointment of a city population officer shall be optional in the city: Provided,
however, That cities which have existing population offices shall continue to maintain
such offices for a period of five (5) years from the date of the effectivity of this Code,
after which said offices shall become optional.
(c) The sangguniang panlungsod may:
(1) Maintain existing offices not mentioned in subsections (a) and (b) hereof;
(2) Create such other offices as may be necessary to carry out the purposes of the
city government; or
(3) Consolidate the functions of any office with those of another in the interest of
efficiency and economy.
(d) Unless otherwise provided herein, heads of departments and offices shall be
appointed by the city mayor with the concurrence of the majority of all the sangguniang
panlungsod members, subject to civil service law, rules and regulations. The sangguniang
panlungsod shall act on the appointment within fifteen (15) days from the date of its
submission, otherwise the same shall be deemed confirmed.
(e) Elective and appointive city officials shall receive such compensation, allowances,
and other emoluments as may be determined by law or ordinance, subject to the
budgetary limitations on personal services prescribed under Title Five, Book II of this
Code: Provided, That, no increase in compensation of the mayor, vice-mayor and
sangguniang panlungsod members shall take effect until after the expiration of the full
term of the said local officials approving such increase.
CHAPTER II
Municipal Officials in General
Section 443. Officials of the Municipal Government. -
(a) There shall be in each municipality a municipal mayor, a municipal vice-mayor,
sangguniang bayan members, a secretary to the sangguniang bayan, a municipal treasurer,
a municipal assessor, a municipal accountant, a municipal budget officer, a municipal
planning and development coordinator, a municipal engineer/building official, a
municipal health officer and a municipal civil registrar.
(b) In addition thereto, the mayor may appoint a municipal administrator, a municipal
legal officer, a municipal agriculturist, a municipal environment and natural resources
officer, a municipal social welfare and development officer, a municipal architect, and a
municipal information officer.
(c) The sangguniang bayan may:
(1) Maintain existing offices not mentioned in subsections (a) and (b) hereof;
(2) Create such other offices as may be necessary to carry out the purposes of the
municipal government; or
(3) Consolidate the functions of any office with those of another in the interest of
efficiency and economy.
(d) Unless otherwise provided herein, heads of departments and offices shall be
appointed by the municipal mayor with the concurrence of the majority of all the
sangguniang bayan members, subject to civil service law, rules and regulations. The
sangguniang bayan shall act on the appointment within fifteen (15) days from the date of
its submission; otherwise, the same shall be deemed confirmed.
(e) Elective and appointive municipal officials shall receive such compensation,
allowances and other emoluments as may be determined by law or ordinance, subject to
the budgetary limitations on personal services as prescribed in Title Five, Book Two of
this Code: Provided, That no increase in compensation of the mayor, vice-mayor, and
sangguniang bayan members shall take effect until after the expiration of the full term of
all the elective local officials approving such increase.
CHAPTER II
Barangay Officials and Offices
Section 387. Chief Officials and Offices. -
(a) There shall be in each barangay a punong barangay, seven (7) sangguniang barangay
members, the sangguniang kabataan chairman, a barangay secretary, and a barangay
treasurer.
(b) There shall also be in every barangay a lupong tagapamayapa. The sangguniang
barangay may form community brigades and create such other positions or offices as may
be deemed necessary to carry out the purposes of the barangay government in accordance
with the needs of public service, subject to the budgetary limitations on personal services
prescribed under Title Five, Book II of this Code.

CASE AUTHORITY: BINAMIRA VS GARRUCHO
G.R. No. 92008 July 30, 1990
RAMON P. BINAMIRA, petitioner, vs. PETER D. GARRUCHO, JR., respondent.
CRUZ, J .:
In this petition for quo warranto, Ramon P. Binamira seeks reinstatement to the office of
General Manager of the Philippine Tourism Authority from which he claims to have been
removed without just cause in violation of his security of tenure.
The petitioner bases his claim on the following communication addressed to him by the Minister
of Tourism on April 7, 1986:
MEMORANDUM TO: MR. RAMON P. BINAMIRA
You are hereby designated General Manager of the Philippine Tourism Authority,
effective immediately.
By virtue hereof, you may qualify and enter upon the performance of the duties of
the office.
(Sgd.) JOSE ANTONIO GONZALES Minister of Tourism and Chairman, P.T.A.
Board
Pursuant thereto, the petitioner assumed office on the same date.
On April 10, 1986, Minister Gonzales sought approval from President Aquino of the
composition of the Board of Directors of the PTA, which included Binamira as Vice-Chairman
in his capacity as General Manager. This approval was given by the President on the same date.
1

Binamira claims that since assuming office, he had discharged the duties of PTA General
Manager and Vice-Chairman of its Board of Directors and had been acknowledged as such by
various government offices, including the Office of the President.
He complains, though, that on January 2, 1990, his resignation was demanded by respondent
Garrucho as the new Secretary of Tourism. Binamira's demurrer led to an unpleasant exchange
that led to his filing of a complaint against the Secretary with the Commission on Human Rights.
But that is another matter that does not concern us here.
What does is that on January 4, 1990, President Aquino sent respondent Garrucho the following
memorandum,
2
copy furnished Binamira:
4 January 1990
MEMORANDUM TO: Hon. Peter D. Garrucho, Jr.. Secretary of Tourism
It appearing from the records you have submitted to this Office that the present
General Manager of the Philippine Tourism Authority was designated not by the
President, as required by P.D. No. 564, as amended, but only by the Secretary of
Tourism, such designation is invalid. Accordingly, you are hereby designated
concurrently as General Manager, effective immediately, until I can appoint a
person to serve in the said office in a permanent capacity.
Please be guided accordingly.
(Sgd.) CORAZON C. AQUINO
cc: Mr. Ramon P. Binamira Philippine Tourism Authority Manila
Garrucho having taken over as General Manager of the PTA in accordance with this
memorandum, the petitioner filed this action against him to question his title. Subsequently,
while his original petition was pending, Binamira filed a supplemental petition alleging that on
April 6, 1990, the President of the Philippines appointed Jose A. Capistrano as General Manager
of the Philippine Tourism Authority. Capistrano was impleaded as additional respondent.
The issue presented in this case is starkly simple.
Section 23-A of P.D. 564, which created the Philippine Tourism Authority, provides as follows:
SECTION 23-A. General Manager-Appointment and Tenure. The General
Manager shall be appointed by the President of the Philippines and shall serve for
a term of six (6) years unless sooner removed for cause; Provided, That upon the
expiration of his term, he shall serve as such until his successor shall have been
appointed and qualified. (As amended by P.D. 1400)
It is not disputed that the petitioner was not appointed by the President of the Philippines but
only designated by the Minister of Tourism. There is a clear distinction between appointment
and designation that the petitioner has failed to consider.
Appointment may be defined as the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office.
3
When completed, usually with its
confirmation, the appointment results in security of tenure for the person chosen unless he is
replaceable at pleasure because of the nature of his office. Designation, on the other hand,
connotes merely the imposition by law of additional duties on an incumbent official,
4
as where,
in the case before us, the Secretary of Tourism is designated Chairman of the Board of Directors
of the Philippine Tourism Authority, or where, under the Constitution, three Justices of the
Supreme Court are designated by the Chief Justice to sit in the Electoral Tribunal of the Senate
or the House of Representatives.
5
It is said that appointment is essentially executive while
designation is legislative in nature.
Designation may also be loosely defined as an appointment because it likewise involves the
naming of a particular person to a specified public office. That is the common understanding of
the term. However, where the person is merely designated and not appointed, the implication is
that he shall hold the office only in a temporary capacity and may be replaced at will by the
appointing authority. In this sense, the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the person named.
Even if so understood, that is, as an appointment, the designation of the petitioner cannot sustain
his claim that he has been illegally removed. The reason is that the decree clearly provides that
the appointment of the General Manager of the Philippine Tourism Authority shall be made by
the President of the Philippines, not by any other officer. Appointment involves the exercise of
discretion, which because of its nature cannot be delegated. Legally speaking, it was not possible
for Minister Gonzales to assume the exercise of that discretion as an alter ego of the President.
The appointment (or designation) of the petitioner was not a merely mechanical or ministerial act
that could be validly performed by a subordinate even if he happened as in this case to be a
member of the Cabinet.
An officer to whom a discretion is entrusted cannot delegate it to another, the
presumption being that he was chosen because he was deemed fit and competent
to exercise that judgment and discretion, and unless the power to substitute
another in his place has been given to him, he cannot delegate his duties to
another.
6

In those cases in which the proper execution of the office requires, on the part of
the officer, the exercise of judgment or discretion, the presumption is that he was
chosen because he was deemed fit and competent to exercise that judgment and
discretion, and, unless power to substitute another in his place has been given to
him, he cannot delegate his duties to another.
7

Indeed, even on the assumption that the power conferred on the President could be validly
exercised by the Secretary, we still cannot accept that the act of the latter, as an extension or
"projection" of the personality of the President, made irreversible the petitioner's title to the
position in question. The petitioner's conclusion that Minister Gonzales's act was in effect the act
of President Aquino is based only on half the doctrine he vigorously invokes. Justice Laurel
stated that doctrine clearly in the landmark case of Villena v. Secretary of the Interior,
8
where he
described the relationship of the President of the Philippines and the members of the Cabinet as
follows:
... all executive and administrative organizations are adjuncts of the Executive
Department, the heads of the various executive departments are assistants and
agents of the Chief Executive, and, except in cases where the Chief Executive is
required by the Constitution or the law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and
administrative functions of the Chief Executive are performed by and through the
executive departments, and the acts of the secretaries of such departments,
performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the
Chief Executive.
The doctrine presumes the acts of the Department Head to be the acts of the President of the
Philippines when "performed and promulgated in the regular course of business," which was true
of the designation made by Minister Gonzales in favor of the petitioner. But it also adds that such
acts shall be considered valid only if not 'disapproved or reprobated by the Chief Executive," as
also happened in the case at bar.
The argument that the designation made by Minister Gonzales was approved by President
Aquino through her approval of the composition of the Board of Directors of the PTA is not
persuasive. It must be remembered that Binamira was included therein as Vice- Chairman only
because of his designation as PTA General Manager by Minister Gonzales. Such designation
being merely provisional, it could be recalled at will, as in fact it was recalled by the President
herself, through the memorandum she addressed to Secretary Garrucho on January 4, 1990.
With these rulings, the petitioner's claim of security of tenure must perforce fall to the ground.
His designation being an unlawful encroachment on a presidential prerogative, he did not acquire
valid title thereunder to the position in question. Even if it be assumed that it could be and was
authorized, the designation signified merely a temporary or acting appointment that could be
legally withdrawn at pleasure, as in fact it was (albeit for a different reason).itc-asl In either
case, the petitioner's claim of security of tenure must be rejected.
The Court sympathizes with the petitioner, who apparently believed in good faith that he was
being extended a permanent appointment by the Minister of Tourism. After all, Minister
Gonzales had the ostensible authority to do so at the time the designation was made. This belief
seemed strengthened when President Aquino later approved the composition of the PTA Board
of Directors where the petitioner was designated Vice-Chairman because of his position as
General Manager of the PTA. However, such circumstances fall short of the categorical
appointment required to be made by the President herself, and not the Minister of Tourism, under
Sec. 23 of P.D. No. 564. We must rule therefore that the petitioner never acquired valid title to
the disputed position and so has no right to be reinstated as General Manager of the Philippine
Tourism Authority.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.
Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Fernan, C.J., took no part.


PERMANENT VS TEMPORARY
ACTING APPOINTMENT
CASES: MOROHOMBSAR VS ALONTO
G.R. No. 93711 February 25, 1991
DR. EMILY M. MAROHOMBSAR, petitioner, vs. AHMAD E. ALONTO, JR., in his
capacity as President of the Mindanao State University, and CORAZON BATARA,
respondents.
GUTIERREZ, JR., J .:p
The issue in this case is whether or not petitioner Dr. Emily M. Marohombsar, who was
appointed Acting Vice-Chancellor for Academic Affairs of the Mindanao State University (MSU)
Marawi Campus by the respondent President may be removed from office even without cause.
On March 22, 1988, the petitioner was designated as officer-in-charge of the Office of the Vice-
Chancellor for Academic Affairs (OVCAA) of MSU in a concurrent capacity with her position
then as Vice-President for External Studies.
On January 2, 1989, the Office of the Vice-President for External Studies was merged with the
OVCAA and, as such, the functions of the former were to be exercised by the latter. The
petitioner was appointed acting Vice-Chancellor for Academic Affairs on the same day. The
Board of Regents of the MSU, on May 16, 1989, approved her appointment as acting Vice-
Chancellor for Academic Affairs.
On May 14, 1990, respondent Ahmad E. Alonto, MSU President, wrote the petitioner informing
her that he has decided to tap the petitioner's talent for the MSU system as Vice-President for
Academic Affairs which position is under the administrative staff of the respondent MSU
President. The petitioner, on the same date, answered that she cannot accept the position since
she has already started several projects in the OVCAA which she wants to see through.
The respondent President, on May 16, 1990, designated Professor Macacuna Moslem as Vice-
Chancellor for Academic Affairs but the latter did not accept the designation. On May 28, 1990,
the respondent President issued Special Order No. 158-P designating Professor Corazon Batara,
the other respondent in this case, as Officer-in-Charge of the OVCAA.
The petitioner now comes to this Court assailing her removal as Vice-Chancellor by the
respondent President.
On June 21, 1990, the Court issued a temporary restraining order directing the respondents to
cease and desist from enforcing and/or implementing Special Order No. 159-P and from
interfering and/or preventing the petitioner from performing her duties as Vice-Chancellor for
Academic Affairs of the MSU, Marawi Campus.
On November 19, 1990, the petitioner filed a motion to cite respondent Alonto for contempt,
alleging that said respondent, in violation of the temporary restraining order issued by this Court
submitted Special Order No. 158-P to the MSU Board of Regents for approval.
The petitioner asserts that her appointment being permanent, she can be removed only after
hearing and for cause.
Resolution No. 59, S. 1989, passed by the MSU Board of Regents on May 16, 1989, reads as
follows:
RESOLVED, that upon recommendation of the President of the University of the
Executive Committee of the Board of Regents the following Special Orders as
amended/corrected are hereby confirmed:
A. DESIGNATIONS
A.1 Major designations
xxx xxx xxx
9) Special Order No. 10-P, S. 1989, designating Prof. Emily M. Marohombsar as
Acting Vice Chancellor for Academic Affairs, MSU Marawi Campus, with an
honorarium in accordance with the approved policies of the University, subject to
accounting and auditing rules and regulations, effective January 2, 1989 and
shall remain in force until revoked or amended by competent authority. (Rollo, pp.
5354; Emphasis supplied)
It may be noted that the special order confirmed by the Board of Regents specifically designated
the petitioner as Acting Vice-Chancellor for Academic Affairs. A bona fide appointment in an
acting capacity is essentially temporary and revocable in character and the holder of such
appointment may be removed anytime even without hearing or cause. (Austria v. Amante, 79
Phil. 780 [1948]; Castro v. Solidum, 97 Phil. 278 [1955]; Mendez v. Ganzon, 101 Phil. 48 [1957];
Valer v. Briones, 9 SCRA 596 [1963]; Abana v. Aguipo, 15 SCRA 604 [1965]; Hojilla v.
Marilao, 13 SCRA 293 [1965]. A person who accepts an appointment in an acting capacity
extended and received without any protest or reservation and who acts thereunder for a
considerable time cannot later be heard to say that the appointment was, in reality, permanent
and therefore there can be no removal except for cause. (See Cabiling v. Pabualan, 14 SCRA 274
[1965])
There are circumstances, however, which rule against the routine or blind application of the
principle which governs acting appointments to this case.
The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to
fill an office for a limited time until a permanent appointment is extended or a new appointee is
chosen. (Austria v. Amante, supra; Castro v. Solidum, supra; and Valer v. Briones, supra)
The nature of an acting appointment limits not only the claims of the appointee to a lengthy
tenure but also defines the authority of the appointing power. A public officer appointed in an
acting capacity cannot claim that the appointment shall in time ripen into a permanent one.
However, neither can the appointing power use the principle of temporary appointments to evade
or avoid the security of tenure principle in the Constitution and the Civil Service Law. This is
similar to the rule that the head of an office cannot arbitrarily convert permanent positions to
primarily confidential items so that he can more freely fire and hire or rehire subordinates at his
personal discretion. It is the nature of the functions attached to a position, not the nomenclature
or title given by the appointing authority which determines its primarily confidential nature.
(Piero v. Hechanova, 18 SCRA 417 [1966]) For the same reason, the Court may inquire into the
true nature of an "acting" appointment to determine whether or not it is used as a device to
circumvent the security of tenure principle.
In this case, the intent to make the petitioner serve at the pleasure of the respondent MSU
President is obvious. The petitioner is a career official of MSU for over 27 years. She was Vice-
President for External Studies since 1982. On March 22, 1988, she was given an additional
assignment as Officer-in-Charge of the Office of the Vice-Chancellor for Academic Affairs
concurrently with the permanent position as Vice-President for External Studies.
About nine months later, the Vice-Presidency for External Studies was "merged" with the Vice-
Chancellorship for Academic Affairs. At the same time, the petitioner was appointed acting
Vice-Chancellor for Academic Affairs.
The effect, therefore, was to abolish the petitioner's permanent office and give her a temporary
appointment in the supposedly new office which replaced or absorbed the former office. Another
result was the loss by the petitioner of her permanent status.
There are reasons which indicate that these maneuverings by the respondent President cannot be
characterized as bona fide.
Section 40.5 (paragraph 22) Article 4 of the Code of Governance of the MSU provides:
Personnel Matters. In accordance with the policies and rules prescribed by the
Board, the specific powers of the President include the following (delegated
powers)
xxx xxx xxx
22. Designation of any Dean, Director, or Department Chairman in acting
capacity or any Officer-in-Charge for any of these positions, for a period of less
than one year, such designation being made without additional compensation for
the position designated except the honorarium attached to said position;
PROVIDED, That the President shall report the designation in the next regular
meeting after winch the designation shall be null and void unless otherwise
renewed.
The power to designate is vested in the MSU President. The designation must be less than one
year. It must be reported to the Board of Regents at the next regular meeting. After the meeting,
another designation must be issued if no permanent appointment was made. The earlier
designation becomes void as the Board is expected to fill the item permanently, not merely
leaving it temporarily occupied.
On the other hand, the power to appoint is vested in the Board of Regents as follows:
Sec. 6. The Board of Regents shall have the following powers and duties, in
addition to its general powers of administration and the exercise of the power of
the corporation;
xxx xxx xxx
(e) To appoint, on the recommendation of the President of the University,
professor, instructors, lecturers and other employees of the University. . . .
MSU Charter, RA 1387
If the President merely designates, the Board of Regents does not confirm the designation. Since
it is only for the information of the Board, the President's action should be merely "noted."
When the Board of Regents confirmed the appointment of the petitioner on May 16, 1989, it was
acting on an ad interim appointment effected by the President. No other interpretation can be
validly made. If it was a mere designation, it needs no confirmation. The fact that confirmation
was needed shows that it is an ad interim one. An ad interim appointment is one made during the
time when the appointing or confirming body is not in session and there is an existing clear and
present urgency caused by an impending obstruction or paralyzation of the functions assigned to
the office if no immediate appointment is made. (Rodriguez, Jr. v. Quirino, 9 SCRA 284 [1963])
When the Vice-Presidency for External Studies was abolished and its functions were merged
with the Vice-Chancellorship for Academic Affairs, both the security of tenure of the occupant
and the needs of the new office called for the ad interim appointment.
The respondent cannot use the device of an ambiguous designation to go around the security of
tenure principle. Under the MSU Code, a designation requires a fixed period of not less than one
year. The appointment given to the petitioner was indefinite. She would serve at the pleasure of
the MSU President who is not even the head of the institution because the head is the Board of
Regents.
The intent to convert permanent items into temporary ones is apparent. The petitioner states that
the purpose "is to hold the sword of Damocles hanging over the head of all MSU employees and
officers." (Rollo, p. 75) The Board of Regents cooperated in the plan. Practically, all top officers
below the President were converted into positions where the occupants serve at the pleasure of
the President and presumably, the Board of Regents. Thus, at the May 16, 1989 Board of
Regents' meeting at the Army and Navy Club alongside the Luneta in Manila, the following
acting appointments were submitted for approval or confirmation:
1. Special Order No. 03-P, S. 1989, designating Atty. Tocod D. Macaraya, Sr. as
Acting Executive Vice-President . . . ;
2. Special Order No. 04-P, S. 1989, designating Dr. Macaurog B. Derogongan as
Acting Vice President for Academic Affairs . . . ;
3. Special Order No. 05-P, S. 1989, designating D. Corazon Batara as Acting
Assistant Vice-President for Academic Affairs . . . ;
4. Special Order No. 113-P, S. 1989, designating D. Milandre S. Rusgal as Acting
Vice President for Planning and Development . . . ;
5. Special Order No. 109-P, S. 1989, designating Prof. Guimba Poingan as Acting
Assistant Vice President for Planning and Development . . . ;
6. Special Order No. 60-P, S. 1989, designating Atty. Concordio Baguio as
Officer-in-Charge of the Office of the Vice-President for Administration and
Finance . . . ;
7. Special Order No. 07-P, S. 1989, designating Prof. Talib R. Muti as Acting
Assistant Vice President for Administration and Finance . . . ;
8. Special Order No. 134-P, S. 1989, designating Prof. Emily M. Marohombsar as
Acting Vice-Chancellor for Academic Affairs, MSU Marawi Campus . . . ;
10. Special Order No. 01-P, S. 1989, designating Atty. Abdul S. Aguam as Acting
Vice Chancellor for Administration and Finance . . . ;
11. Special Order No. 11-P, S. 1989, designating Dr. Cosain Derico as Acting
Vice Chancellor for Research and Extension . . . (Rollo, pp. 117-118)
The respondents argue that the permanent item of the petitioner is Professor VI. They state:
xxx xxx xxx
Finally, petitioner has not refuted the fact that the position she actually occupies is
that of Professor VI. This is precisely the reason why petitioner's designation as
Acting VCAA can not be deemed a regular or permanent appointment because, if
it were so, the anomalous situation of one permanently appointed to two public
positions simultaneously would arise. (Rollo, p. 130)
This argument has no merit.
As early as 1963, this Court ruled in Tapales v. President and Board of Regents of the University
of the Philippines (7 SCRA 553 [1963]) that UP Deans and Directors enjoy security of tenure
and any attempt to remove them by limiting their terms of office from permanent to a five (5)
year term is unconstitutional. Deans and Directors are selected from faculty members. An
appointment as Professor is also needed for salary rating purposes but does not detract from the
permanent nature of the administrative position (id., at pp. 554 and 556). The fact that Professor
Tapales was given another appointment as Director of the U.P. Conservatory of Music does not
mean that the second appointment is only temporary in nature. In the present case, the fact that
Professor Marohombsar has a permanent appointment as Professor does not detract from the
permanent nature of her present appointment as Vice-Chancellor, especially since the same was
duly confirmed by the MSU Board of Regents. The only difference is that her position as Vice-
Chancellor has a fixed term while that of Professor Tapales was until he retired or resigned.
The attempt of the respondent to solve the problem by placing the petitioner in his own
administrative staff as Vice-President for Academic Affairs cannot be countenanced. The
petitioner served in this capacity from 1975 to 1978 after which she became Vice-President for
External Studies in 1982. The proffered position is not only less desirable to the petitioner but
she expressly rejected it, preferring to stay in her present position. She thanked the respondent
but stated she would not be effective in the new position while in the OVCAA she could
complete a number of projects and programs. (Rollo, p. 21) The correctness of the petitioner's
stand is explained by this Court in Sta. Maria v. Lopez (31 SCRA 673 [1970]). There are
transfers which appear to be promotions or lateral movements but are in truth demotions. There
is no showing that the interest of the service would be served if the proffered appointment would
be forced on her.
No less than the Secretary of Education, Culture and Sports, Secretary Isidro D. Cario opined,
and the Court agrees with him, that the petitioner may not be removed from the disputed office
by the MSU President without the authority of the Board. And, as correctly stated by the
Secretary, Special Order No. 158-P issued by the respondent president designating respondent
Batara as officer in-charge of the same office was unapproved by the Board, hence, the special
order cannot revoke, or could not have revoked the designation of the petitioner as acting Vice-
Chancellor. (Annex A, Petitioner's Memorandum, Rollo, pp. 119-120)
The respondent MSU President, perhaps realizing the vulnerability of his action, submitted
Special Order No. 158-P to the Board of Regents for approval. But such submission was made
after the Court already issued its temporary restraining order and consequently, his action
constituted contempt of Court. Considering, however, that the respondent appears to have acted
in the honest albeit mistaken belief that MSU would progress faster if the executive officers
serve at his pleasure and discretion, the Court rules that declaring him in contempt would be too
harsh a remedy. The respondent President is, nevertheless, admonished for his action. When this
Court issues a restraining order, it must be obeyed.
WHEREFORE, the petition is GRANTED. The petitioner shall remain as the lawful occupant in
a permanent capacity of the position of Vice-Chancellor for Academic Affairs of MSU Marawi
until the end of her three-year term or her tenure is otherwise lawfully terminated. The motion to
cite respondent Alonto for contempt is DENIED but the respondent is admonished to faithfully
heed court orders in the future. The Temporary Restraining Order issued by this Court on June
21, 1990 is made PERMANENT.
SO ORDERED.



MATURAN VS MAGLANA
G.R. No. L-52091 March 29, 1982
TERESO V. MATURAN, petitioner-appellant, vs. Mayor SANTIAGO MAGLANA of San
Francisco, Southern Leyte, Vice-Mayor HONORIO MAGONCIA, Municipal Councilors
BONIFACIO AMARGA, JR., ALFONSO ASPIRIN, SR., SIMEON DUTERTE, SAMSON
GAMUTAN, CONSTANCIO ESTAFIA, FELICISIMO BACUS, VICTOR JATAYNA, SR.,
JUANCHO MORI, Chief of Police FRANCISCO DUTERTE, Municipal Treasurer
RAMON TOLIBAS and the MUNICIPALITY OF SAN FRANCISCO, SOUTHERN
LEYTE, respondents-appellees.
DE CASTRO, J .:
This case was certified to this Court by the Court of Appeals pursuant to its resolution dated
October 30, 1979, the issue raised herein being purely legal, which is the interpretation of
Presidential Decree No. 12-A and Letter of Instruction No. 14 in relation to the present case.
Petitioner was appointed as patrolman of San Francisco, Southern Leyte on February 1, 1965
with a compensation of P540.00 per annum. On October 1, 1967 he was promoted to the rank of
police sergeant at P720.00 per annum. On October 8, 1968 and July 1, 1969 petitioner's salary
was adjusted to P1,320.00 and P1,800.00 per annum, respectively. All the aforesaid
appointments of petitioner were provisional. On July 1, 1970 his provisional appointment was
renewed. Likewise on July 1, 1971 his provisional appointment was renewed with an increase in
pay in the amount of P2,640.00 per annum.
On September 15, 1972, respondent Mayor Santiago Maglana suspended the petitioner from
office because of two pending criminal cases against him, namely Criminal Case No. 236, for
falsification of public document by making untruthful statement in the narration of facts, and
Criminal Case No. 312, for falsification of public document. On October 2, 1972 respondent
Vice-Mayor Honorio Magoncia, who was then the Acting Mayor instructed petitioner together
with Chief of Police Francisco Duterte and Patrolman Asisclo Irong, to tender their resignations
pursuant to the Letter of Instruction No. 14 of the President of the Philippines. Petitioner
submitted his letter of resignation on October 9, 1972. Petitioner's resignation was approved on
January 19, 1973 and petitioner was accordingly informed thereof.
In a letter dated February 19, 1973 petitioner sought the reconsideration of the approval of his
resignation for being null and void on the ground that Letter of Instruction No. 14 does not apply
to him.
In the meantime, Criminal Case Nos. 236 and 312 were dismissed on January 31, 1973 and
November 5, 1973, respectively.
In a letter dated January 12, 1974, Hon. Juan Ponce Enrile then Acting Chairman of the National
Police Commission informed petitioner that due to the dismissal of the aforesaid criminal cases,
the latter's preventive suspension has been lifted and petitioner was directed to report for duty to
his Chief of Police. Petitioner reported for duty on February 1, 1974 but Chief of Police
Francisco Duterte refused to accept the former in the police force.
Respondent Mayor sent a letter dated February 5, 1974 to the Chairman of the National Police
Commission requesting advice as to whether the resignation tendered by petitioner pursuant to
letter of Instruction No. 14 is valid. In a reply letter dated August 13, 1974 the Deputy Executive
Commissioner stated that since petitioner resigned from office on October 2, 1972, the lifting of
his suspension as directed in the National Police Commission's letter dated January 12, 1974 is
no longer feasible, the same having been rendered moot and academic; that said office had
occasion to rule that resignations submitted by members of the police force in compliance with
the provisions of Letter of Instruction No. 14 are valid, said Instruction being broad in scope to
include both local and national officials.
Petitioner sought the intervention of the Governor of Southern Leyte to no avail, hence, on May
21, 1974 petitioner filed a petition for mandamus with claim for back salaries, traveling expense
and damages before the Court of First Instance of Southern Leyte, Branch III.
It was alleged by petitioner that the refusal of respondents Mayor and Chief of Police to reinstate
him is a violation of paragraph 7 of Presidential Decree No. 12-A which provides:
7. Members of the police force who have been preventively suspended shall, upon
exoneration be entitled to immediate reinstatement and payment of the entire
salary they failed to receive during the period of suspension;
that the case of petitioner falls squarely within the purview of Presidential Decree No. 12-A
which was promulgated on October 4, 1972 and which governs policemen with pending cases;
and that Letter of Instruction No. 14 under whose provisions petitioner was made to resign is not
applicable to policemen.
In respondents' answer dated July 3, 1974, they set up the defense that petitioner has falsely
entered in his duly sworn information sheet that he is a high school graduate of the University of
Manila during the school year 1954-55, but in his Personal Data Sheet, CS Form No. 212, dated
October 8, 1968 he feloniously alleged and/or entered therein that he is a graduate of the Pana-on
Academy in the school year 1950-51 when in truth he was only a second year high school
student; that petitioner, who has voluntarily resigned, needs a new appointment and has to meet
the qualifications required by law among which, are, that he must be at least a high school
graduate and not over 33 years of age; that petitioner falls short of these requirements; and that
petitioner is notoriously undesirable, publicly known to be of bad moral character and oftentimes
got drunk while on duty.
On February 4, 1975 respondent court issued a decision dismissing the petition for lack of merit.
The court a quo agreed with the opinion of the National Police Commission that resignations
submitted by members of the police force in compliance with the provisions of Letter of
Instruction No. 14 are valid. Since petitioner has been separated from the service, reinstatement
is not the proper remedy. The court also said that the evidence of conflicting entries on
petitioner's two information sheets have not been denied or rebutted, hence the preponderance of
evidence is against the petitioner that he is not a high school graduate, as he could not have
graduated in two high schools, one in the University of Manila during the school year 1954-55
and the other at the Pana-on Academy during the school year 1950-51. Lastly, the trial court
ruled that since all petitioner's appointment were provisional, he can be removed at any time by
the appointing power, Mayor Maglana.
On appeal to the Court of Appeals, petitioner filed his brief on June 28, 1976. For failure of
respondents to submit their brief, the case was submitted for decision on November 16, 1976.
Petitioner made the following assignment of errors:
FIRST ERROR
THE LOWER COURT ERRED IN HOLDING THAT THE RESIGNATION OF
PETITIONER FROM THE POSITION OF POLICE SERGEANT OF THE SAN
FRANCISCO POLICE FORCE AND THE ACCEPTANCE OF SUCH
RESIGNATION BY RESPONDENT MAYOR MAGLANA DURING THE
PENDENCY OF A CRIMINAL CASE FILED AGAINST PETITIONER AND
WHILE PETITIONER WAS UNDER PREVENTIVE SUSPENSION ARE
LEGAL AND VALID;
SECOND ERROR
THE TRIAL COURT ERRED IN HOLDING THAT PETITIONER CAN BE
REMOVED FROM THE OFFICE AT ANY TIME BY RESPONDENT MAYOR
MAGLANA;
THIRD ERROR
THE LOWER COURT ERRED IN RULING THAT RESPONDENT MAYOR
COULD NOT BE COMPELLED TO REINSTATE AND/OR REAPPOINT
PETITIONER WHO POSSESSED CIVIL SERVICE ELIGIBILITY AS
PATROLMAN AND WITH POLICE TRAINING AT THE POLCOM
ACADEMY; and
FOURTH ERROR
THE COURT BELOW ERRED IN DISMISSING THIS CASE AND
DISALLOWING PETITIONER TO COLLECT HIS BACK SALARIES AND
TRAVELING EXPENSES.
Petitioner contends that under Presidential Decree No. 12-A promulgated on October 4, 1972 the
power to dismiss or remove a member of the police force has been transferred from the Mayor to
the Police Commission. Hence, the acceptance of petitioner's resignation by respondent Mayor
on January 19, 1973 is null and void because the latter is no longer clothed with authority to
dismiss or remove a member of the police force on said date. Furthermore, petitioner stresses
that Letter of Instruction No. 14 under whose provisions he was made to resign is not applicable
to him as said Instruction covers only officials and employees with pending cases excluding
policemen. Lastly, petitioner banks on his testimonial eligibility which he obtained on October
10, 1974 to justify his reappointment.
Presidential Decree No. 12 dated October 3, 1972 created the Adjudication and Investigation
Boards in the Police Commission to review and dispose of all administrative cases of city and
municipal forces referred to the Commission. On October 4, 1972 Presidential Decree 12-A was
promulgated providing for the procedure to be followed in case an administrative charge is filed
against any member of the local police agency or when a member of the police force is accused
in court of any felony or violation of law. Nowhere in the provisions of said Presidential Decrees
show that the power to dismiss or remove has been transferred from the Mayor to the Police
Commission as contended by petitioner. It was only on August 8, 1974 when such power was
removed from the Mayor pursuant to 'Presidential Decree No. 531 integrating the municipal
police forces in an the municipalities of the province of Southern Leyte. Presidential Decree No.
531 states:
SEC. 6. Power of administrative control and supervision. Administrative
control and supervision over the several police and fire departments and jails
composing each of the Integrated Police Forces herein constituted shall, prior to
the transfer provided for in Section 7 hereof, remain with the offices, agencies and
officials in which said power is vested in accordance with existing laws; ...
Accordingly, administrative matters, such as appointment promotion suspension
separation and other disciplinary action ... and such other matters pertaining to
personnel administration which are currently vested in and exercised by other
officials pursuant to existing laws, rules and regulations shall remain with said
officials, ...
SEC. 7. Administrative control and supervision to be transferred to the Philippine
Constabulary. After one year, but not later than two years, from the effectivity
of this Decree, the power and administrative control and supervision provided for
in Section 6 hereof shall be taken over and exercised by the Philippine
Constabulary. ...
It is clear therefore that at the time petitioner's resignation was approved by respondent Mayor on
January 19, 1973 the latter still had the power to dismiss or remove the former.
Petitioner did not dispute that at the time he was appointed member of the Police Force of San
Francisco, Southern Leyte, he had neither qualified in an appropriate examination for the
position of policeman nor was he possessed with any civil service eligibility for any position in
the government. Such lack of a civil service eligibility makes his appointment temporary
1
and
without a definite term and is dependent entirely upon the pleasure of the appointing power.
2

Although indicated as provisional and approved under Section 24 (c)
3
of Republic Act 2260 the
petitioner's appointment did rot acquire the character of provisional appointment because of his
lack of appropriate civil service eligibility for the position of municipal policeman. The Civil
Service Commission cannot even legally approve his appointment as provisional as this act
would constitute an unwarranted invasion of the discretion of the appointing power.
4
If the
approval of his appointment as provisional under Section 24 (c) of Republic Act 2260 did not
make it so, the fact remains that his appointment was temporary which could be terminated
without any need to show that the termination was for cause.
5

The fact that petitioner subsequently obtained a testimonial eligibility on October 10, 1974 is of
no moment. At the time he received his appointment, as aforestated, petitioner had no eligibility.
As such what is required is a new appointment, not merely reinstatement. But even then, he
cannot compel the Mayor to reappoint him for the power to appoint is in essence discretionary
and the appointing power enjoys sufficient discretion to select and appoint employees on the
basis of their fitness to perform the duties and assume the responsibilities of the position filled.
6

WHEREFORE, the decision dated February 4, 1975 of the lower court is hereby affirmed. No
costs.
SO ORDERED.
ACHACOSO VS MACARAIG
G.R. No. 93023 March 13, 1991
TOMAS D. ACHACOSO, petitioner vs. CATALINO MACARAIG and RUBEN D.
TORRES, in their capacities as Executive Secretary and Secretary of the Department of
Labor and Employment (DOLE), respectively; and JOSE N. SARMIENTO, respondents.
CRUZ, J :p
The petitioner invokes security of tenure against his claimed removal without legal cause. The
respondents assert he is not entitled to the guaranty because he is not a career official. These are
the legal issues. The facts are as follows:
Tomas D. Achacoso was appointed Administrator of the Philippine Overseas Employment
Administration on October 16, 1987, and assumed office on October 27, 1987. On January 2,
1990, in compliance with a request addressed by the President of the Philippines to "all
Department Heads, Undersecretaries, Assistant Secretaries, Bureau Heads," and other
government officials, he filed a courtesy resignation. This was accepted by the President on April
3, 1990, "with deep regrets." On April 10, 1990, the Secretary of Labor requested him to turn
over his office to the Deputy Administrator as officer in-charge. In a letter dated April 19, 1990,
he protested his replacement and declared he was not surrendering his office because his
resignation was not voluntary but filed only in obedience to the President's directive. On the
same date, respondent Jose N. Sarmiento was appointed Administrator of the POEA, vice the
petitioner. Achacoso was informed thereof the following day and was again asked to vacate his
office. He filed a motion for reconsideration on April 23, 1990, but this was denied on April 30,
1990. He then came to this Court for relief.
In this petition for prohibition and mandamus, this Court is asked to annul the appointment of
Sarmiento and to prohibit the respondents from preventing the petitioner from discharging his
duties as Administrator of the POEA.
Achacoso contends that he is a member of the Career Service of the Civil Service and so enjoys
security of tenure, which is one of the characteristics of the Career Service as distinguished from
the Non-Career Service.
1
Claiming to have the rank of undersecretary, he says he comes under
Article IV, Section 5 of P.D. 807, otherwise known as the Civil Service Decree, which includes
in the Career Service:
3. Positions in the Career Executive Service; namely, Undersecretary, Assistant
Secretary, Bureau Director, Assistant Bureau Director, Regional Director,
Assistant Regional Director, Chief of Department Service and other officers of
equivalent rank as may be identified by the Career Executive Service Board, all of
whom are appointed by the President.
His argument is that in view of the security of tenure enjoyed by the above-named officials, it
was "beyond the prerogatives of the President" to require them to submit courtesy resignations.
Such courtesy resignations, even if filed, should be disregarded for having been submitted "under
duress," as otherwise the President would have the power to remove career officials at pleasure,
even for capricious reasons. In support of this contention, he invokes Ortiz vs. Commission on
Elections,
2
where we observed that "to constitute a complete and operative act of resignation,
the officer or employee must show a clear intention to relinquish" and that "a courtesy
resignation cannot properly be interpreted as a resignation in the legal sense for it is not
necessarily a reflection of a public official's intention to surrender his position." He concludes
that as his removal was illegal, there was no vacancy in the disputed office to which respondent
Sarmiento could have been validly appointed.
In his Comment, the Solicitor General concedes that the office of POEA Administrator is a
career executive service position but submits that the petitioner himself is not a career executive
service official entitled to security of tenure. He offers the following certification from the Civil
Service Commission to show that the petitioner did not possess the necessary qualifications
when he was appointed Administrator of the POEA in 1987:
C E R T I F I C A T I O N
This is to certify that per records of the Career Executive Service Board (CESB),
Mr. Tomas D. Achacoso III has not participated in a Career Executive Service
Development Program (CESDP) and is not a CES eligible. This is to certify
further that Mr. Achacoso was not appointed to a rank in the CES and is not
therefore a member of the Career Executive Service.
xxx xxx xxx
(Sgd.) ELMOR D. JURIDICO
Executive Director
Reference is also made to the following rules embodied in Part III, Article IV, Integrated
Reorganization Plan as approved by P.D. 1 and amended by P.D. 336 and P.D. 337, on the career
executive service:
c. Appointment. Appointment to appropriate classes in the Career Service shall be
made by the President from a list of career executive eligibles recommended by
the Board. Such appointments shall be made on the basis of rank; provided that
appointments to the higher ranks which qualify the incumbents to assignments as
undersecretary and heads of the bureaus and offices and equivalent positions shall
be with the confirmation of the Commission on Appointments. The President may,
however, in exceptional cases, appoint any person who is not a Career Executive
Service eligible, provided that such appointee shall subsequently take the
required Career Executive Service examination and that he shall not be promoted
to a higher class until he qualifies in such examination. (Emphasis supplied.)
The respondents contend that as the petitioner was not a career executive service eligible at the
time of his appointment, he came under the exception to the above rule and so was subject to the
provision that he "shall subsequently take the required Career Executive Service examination
and that he shall not be promoted to a higher rank until he qualifies in such examination." Not
having taken that examination, he could not claim that his appointment was permanent and
guaranteed him security of tenure in his position.
It is settled that a permanent appointment can be issued only "to a person who meets all the
requirements for the position to which he is being appointed, including the appropriate eligibility
prescribed." Achacoso did not. At best, therefore, his appointment could be regarded only as
temporary. And being so, it could be withdrawn at will by the appointing authority and "at a
moment's notice," conformably to established jurisprudence.
The Court, having considered these submissions and the additional arguments of the parties in
the petitioner's Reply and the Solicitor-General's Rejoinder, must find for the respondents.
The mere fact that a position belongs to the Career Service does not automatically confer
security of tenure on its occupant even if he does not possess the required qualifications. Such
right will have to depend on the nature of his appointment, which in turn depends on his
eligibility or lack of it. A person who does not have the requisite qualifications for the position
cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed
to it merely in an acting capacity in the absence of appropriate eligibles.
3
The appointment
extended to him cannot be regarded as permanent even if it may be so designated.
The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of
official functions by authorizing a person to discharge the same pending the selection of a
permanent or another appointee.
4
The person named in an acting capacity accepts the position
under the condition that he shall surrender the office once he is called upon to do so by the
appointing authority.
In these circumstances, the acting appointee is separated by a method of terminating official
relations known in the law of public officers as expiration of the term. His term is understood at
the outset as without any fixity and enduring at the pleasure of the appointing authority. When
required to relinquish his office, he cannot complain that he is being removed in violation of his
security of tenure because removal imports the separation of the incumbent before the expiration
of his term.
5
This is allowed by the Constitution only when it is for cause as provided by law.
The acting appointee is separated precisely because his term has expired. Expiration of the term
is not covered by the constitutional provision on security of tenure.
There is a long line of cases affirming the rule that:
. . . One who holds a temporary appointment has no fixed tenure of office; his
employment can be terminated at the pleasure of the appointing power, there
being no need the show that the termination is for cause.
6

The petitioner contends that his appointment was really intended to be permanent because
temporary appointments are not supposed to exceed twelve months and he was allowed to serve
in his position for more than three years. This is unacceptable. Even if that intention were
assumed, it would not by itself alone make his appointment permanent. Such an appointment did
not confer on the petitioner the appropriate civil service eligibility he did not possess at the time
he was appointed, nor did it vest him with the right to security of tenure that is available only to
permanent appointees.
The case of Luego vs. Civil Service Commission
7
is not applicable because the facts of that case
are different. The petitioner in Luego was qualified and was extended a permanent appointment
that could not be withdrawn on the ground that it was merely temporary. In the case at bar, the
petitioner was not eligible and therefore could be appointed at best only in a temporary capacity.
The other cases he cites, viz. Pamantasan ng Lungsod ng Maynila vs. Intermediate Appellate
Court,
8
Palma-Fernandez vs. De la Paz,
9
and Dario vs. Mison,
10
are also not pertinent because
they also involved permanent appointees who could not be removed because of their security of
tenure.
It should be obvious from all the above observations that the petitioner could have been validly
replaced even if he had not filed his courtesy resignation. We therefore do not have to rule on its
legality. Suffice it to say that it could have been a graceful way of withdrawing him from his
office with all the formal amenities and no asperity or discord if only he had not chosen to
contest it. But it was his right to do so, of course, although his challenge has not succeeded.
WHEREFORE, the petition is DISMISSED, with costs against the petitioner. It is so ordered.
ROMUALDEZ III VS CIVIL SERVICE COMMISSION
G.R. Nos. 94878-94881 May 15, 1991
NORBERTO A. ROMUALDEZ III, petitioner, vs. CIVIL SERVICE COMMISSION* and
THE PHILIPPINE COCONUT AUTHORITY, respondents.
GANCAYCO, J .:p
By this petition the intervention of public respondent Civil Service Commission (SCS) is sought
to compel public respondent Philippine Coconut Authority (PCA) to reinstate and extend a
permanent appointment to petitioner as Deputy Administrator for Industrial Research and Market
Development.
Petitioner was appointed and served as a Commercial Attache of the Department of Trade
continuously for twelve years from September, 1975 to August 30, 1987. His civil service
eligibilities are: Patrolman of the City of Manila (1963 CS Exam) and a Commercial Attache
(1973 CS Exam).
On September 1, 1987, he was transferred to the respondent PCA whereby he was extended an
appointment as Deputy Administrator for Industrial Research and Market Development.
1
The
nature of his appointment was "reinstatement" and his employment status was "temporary," for
the period covering September 1, 1987 to August 30, 1988. His appointment was renewed for
another six months from September 1, 1988 to February 28, 1989 also on a "temporary" status
and subject to certain conditions to which petitioner agreed.
When his appointment expired on February 28, 1989, the Governing Board did not renew the
same so he was promptly informed thereof by the Acting Chairman of the Board of the PCA,
Apolonio V. Bautista.
2

On February 6, 1990, petitioner appealed to respondent CSC He requested reinstatement to his
previous position in PCA and in support of the request, he invoked the provisions of (CSC)
Memorandum Circular No. 29 dated July 19, 1989.
3

Respondent CSC denied petitioner's request for reinstatement on May 2, 1990 by way of its
Resolution No. 90-407, holding that CSC Memorandum Circular No. 29 was not applicable to
petitioner's case because it took effect on July 19, 1989 when petitioner had long been out of the
government service since February 28, 1989 and that his reappointment was essentially
discretionary on the part of the proper appointing authority.
On May 11, 1990, respondent PCA appointed Mr. Roman Santos to the contested position.
Petitioner moved for a reconsideration of Resolution No. 90-407 but it was denied by respondent
CSC in Resolution No. 90-693 dated July 31, 1990.
4

Hence, petitioner filed this petition for certiorari, prohibition and mandamus with a prayer for
the issuance of a writ of preliminary injunction and/or temporary restraining order, raising the
following issues
l. Public Respondent Civil Service Commission committed grave abuse of
discretion amounting to capricious, whimsical, and despotic refusal to perform a
legal/constitutional duty to enforce the Civil Service Law and/or constituting non-
feasance/mis-feasance in office in issuing Resolution Nos. 90-407 and 90-693;
2. The legal issue of the applicability of Civil Service Commission Circular No.
29, Series 1989 on the appointment of petitioner as PCA Deputy Administrator
for Industrial Research and Market Development;
3. The legal issue as to whether it is mandatory for an appointing authority to
extend permanent appointments to selected appointees with corresponding civil
service eligibilities;
4. Public respondent Civil Service Commission committed grave abuse of
discretion amounting to lack of jurisdiction and/or non-feasance/misfeasance of
official functions in not exercising its authority to enforce/implement the Civil
Service Law and in not affording petitioner who belongs to the career service in
the government the protective security of tenure and due process clause of the
Philippine 1987 Constitution as well as the Civil Service Law under P.D. 807;
5. Public respondent Philippine Coconut Authority unlawfully and maliciously
deliberately failed/refused to strictly comply with the provision of par. a, Section
25 of P.D. 807 in the matter of extending permanent appointment to petitioner
constituting likewise grave abuse of discretion on the part of public respondent
Civil Service Commission amounting to gross ignorance of the law in not
correcting/rectifying such malicious and deliberate non-compliance, in view of
the mandatory directive of Section 8, Rule III of the Civil Service Rules on
Personnel Actions and Policies.
5

The petition is devoid of merit.
No doubt the appointment extended to petitioner by respondent PCA as PCA Deputy
Administrator for Industrial Research and Market Development was temporary. Although
petitioner was formerly holding a permanent appointment as a commercial attache, he sought and
accepted this temporary appointment to respondent PCA.
His temporary appointment was for a definite period and when it lapsed and was not renewed on
February 28, 1987, he complains that there was a denial of due process. This is not a case of
removal from office. Indeed, when he accepted this temporary appointment he was thereby
effectively divested of security of tenure.
6
A temporary appointment does not give the appointee
any definite tenure of office but makes it dependent upon the pleasure of the appointing power.
7

Thus, the matter of converting such a temporary appointment to a permanent one is addressed to
the sound discretion of the appointing authority. Respondent CSC cannot direct the appointing
authority to make such an appointment if it is not so disposed.
8

The duty of respondent CSC is to approve or disapprove an appointment. Its attestation is limited
to the determination whether the appointee possesses the required qualifications for the position
as the appropriate civil service eligibility.
9

Petitioner invokes CSC Memorandum Circular No, 29, S. 1989, dated July 19, 1989 which
provides
(a) A permanent appointment shall be issued to a person who meets all the
requirements for the position to which he is being appointed, including the
appropriate eligibility prescribed, in accordance with the provisions of law, rules
and standards promulgated in pursuance thereof. (Section 25 (a), P.D. 807).
(b) While the appointing authority is given a wide latitude of discretion in the
selection of personnel for his department or agency, in the exercise of this
discretion he shall be guided by and subject to the Civil Service Law and Rules.
10

As aptly observed by respondent CSC said circular cannot be given retrospective effect as to
apply to the case of petitioner who was separated from the service on February 28, 1989. And
even if the said circular may apply to petitioner's situation, under said circular it is recognized
that "the appointing authority is given a wide latitude of discretion in the selection of personnel
of his department or agency." Respondent PCA exercised its discretion and opted not to extend
the appointment of petitioner. It cannot be compelled to extend petitioner's appointment, much
less can it be directed to extend a permanent appointment to petitioner. A discretionary duty
cannot be compelled by mandamus.
11
More so when as in this case petitioner has not shown a
lawful right to the position. If the legal rights of the petitioner are not well-defined, clear and
certain, the petition must be dismissed.
12

WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
DESIGNATION
SEVILLA VS CA
G.R. No. 88498 June 9, 1992
GENEROSO R. SEVILLA, petitioner, vs. THE HON. COURT OF APPEALS and
NERITO L. SANTOS, respondents.
GRIO-AQUINO, J .:
May an officer who was appointed to an office in an "acting" capacity, bring a quo warranto
action against the permanent appointee to the position?
The petitioner has been in the government service since 1949. His last appointment was last
Assistant City Engineer of Palayan City which he discharged until he was designated Acting City
Engineer of Cabanatuan City by President Ferdinand E. Marcos on May 2, 1981. He
unhesitatingly assumed the latter position and discharged its functions and responsibilities until
"People Power" and the EDSA Revolution intervened. The subsequent twists and turns in his
professional career are recited in the decision dated May 31, 1989 of the Coourt of Appeals in
CA- G.R. SP No. 14489 as follows:
The advent of the 1986 Revolution and the 1987 Freedom Constitution spelled
changes and upheavals particularly within the Career Civil Service. On August 18,
1986, the then Officer-in charge (OIC Mayor) of Cabanatuan City, Cesar Vergara,
appointed defendant-appellant Santos as city engineer of Cabanatuan City, and on
August 28, 1986, defendant-appellant Santos assumed the position of city
engineer. On that very same day, a memorandum informing petitioner-appellee
Sevilla of the appointment of defendant-appellant Santos was sent by then OIC
Mayor. As petitioner-appellee Sevilla was on leave at the time, the memorandum
was received on his behalf by Anita de Guzman, the administrative officer of the
Department of Public Works and Highways (DPWH) Office of Cabanatuan City,
where petitioner-appellee Sevilla also holds office.
A few months later, or on November 14, 1986, petitioner-appellee Sevilla was
designated by then Minister Rogociano Mercado of the MPWH as acting district
engineer of Pasay City. Petitioner-appellee Sevilla served in that capacity until he
was removed from that office of the new Secretary of the DPWH on February 3,
1987. This was what precipitated the present controversy.
Petitioner-appellee then returned to Cabanatuan City. On March 27, 1987, he filed
a petition for quo warranto against defendant-appellant Santos, which was
docketed as Civil Case No. 879-134 (AF) before the Regional Trial Court of
Cabanatuan City, Branch 27. On January 29, 1988, the lower rendered the
impugned decision reinstating petitioner-appellee Sevilla and entitling him
payment of vacation and sick leaves for the duration of his absence. The
dispositive part of that decision reads:
WHEREFORE, judgement is hereby rendered for petitioner and
against the respondent, to wit:
a. Ousting and excluding respondent Nerito Santos from the
position of City Engineer;
b. Declaring petitioner Generoso Sevilla as the person lawfully
entitled to hold aforesaid position; and
c. Declaring petitioner Generoso Sevilla as entitled to payment of
vacation and sick leave during the period he was prevented from
rendering service by reason of this case. (pp. 53-54, Rollo.)
On August 18, 1986, the OIC Mayor of Cabanatuan City, Cesar Vergara, appointed Nerito L.
Santos as the new city engineer of Cabanatuan City. Santos assumed the position on August 28
1986. On the same day, a memorandum was addressed to Sevilla informing him of Santos'
appointment as city engineer of Cabanatuan City. Anita de Guzman, administrative officer of the
Department of Public Works and Highways (DPWH) unit in Cabanatuan City received the notice
for Sevilla who was on leave on that time.
On November 14, 1986, the Minister of Public Works and Highways, Rogaciano Mercado,
designated Sevilla as Acting District Engineer of Pasay City. He served in that capacity for a
little over two months or until he was removed on February 3, 1987 by the new DPWH Secretary,
Jesus Jayme, forcing him to return to the Cabanatuan City Engineer's Office which, however,
was already occupied by Nerito Santos.
On March 27, 1987, Sevilla filed a petition for quo warranto against Santos. It was docketed as
Civil case No. 8795-134 (AF) in the Regional Trial Court of Cabanatuan City Branch 27. On
June 8, 1987, the complaint was amended to include a petition for mandamus against the new
OIC Mayor Evangelina Vergara, but the mandamus petition was dismissed by the trial court,
which proceeded to hear the quo warranto petition only.
In his quo warranto petition, Sevilla argued that, being the presidential appointee, he could not
be removed from office by an OIC mayor. And, even supposing that the OIC mayor had such
authority, his (Sevilla's) separation from office was illegal because none of the grounds for the
separation/replacement of public officials and employees set forth in Section 3 of Executive
Order No. 17 dated May 28, 1986, was cited to justify the termination of his service. Section 3 of
E.O. No. 17 provides:
Section 3. The following shall be the grounds for separation/replacement of
personnel:
1. Existence of the case for summary dismissal pursuant to Section 40 of the Civil
Service Law;
2. Existence of a probable cause for violation of the Anti-Graft and Corrupt
Practices Act as determined by the Ministry Head concerned;
3. Gross incompetence or inefficiency in the discharge of functions:
4. Misuse of public office for partisan political purposes:
5. Any other analogous ground showing that the incumbent is unfit to remain in
the service or his separation/replacement is in the interest of the service.
On January 29, 1988, the lower court rendered a decision reinstating Sevilla as acting City
Engineer of Cabanatuan City with right to payment of vacation and sick leaves for the duration
of his absence (pp. 26-34, Rollo).
Santos appealed the decision to the Court of Appeals (CA-G.R. SP No. 14489) alleging that:
1. Sevilla has no legal standing to bring an action for quo warranto, because his designation to
the disputed position was in an acting capacity only:
2. his acceptance of another position in Pasay City precludes him from filing a quo warranto
action; and
3. the OIC mayor had legal authority to appoint Santos as city engineer.
In a decision dated May 31, 1989 (pp. 53-57, Rollo), the Court of Appeals set aside the lower
court's decision and entered a new one, dismissing the petition for quo warranto. The Court of
Appeals held that by accepting another office. Sevilla in effect voluntarily surrendered his former
office, and was thereby precluded from maintaining a quo warranto action against Santos. When
he accepted the position in Pasay City, he lost his right to the position in Cabanatuan City. The
Court ruled that Santos' appointment was valid because it as confirmed by Minister Rogaciano
Mercado of the Ministry of Public Works and Highways.
Sevilla filed this petition for review alleging that the Court of Appeals erred:
1. in not applying the provisions of Executive Order No. 17;
2. in not considering his appointment as acting city engineering of Cabanatuan
City as a specie of permanent appointment covered by civil service security of
tenure and outside the doctrine enunciated in Austria vs. Amante (79 Phil. 790)
cited by the respondent court as basis of its decision; and
3. in declaring that he "voluntarily surrendered his former office," (p. 1, Rollo)
instead of finding that he merely complied with the memorandum of the Minister
of Public Works and Highways assigning him in Pasay City.
The petition is devoid of merit.
An "acting" appointment is merely temporary, one which is good only until another appointment
is made to take its place (Austria vs. Amante. 79 Phil. 784). Hence, petitioner's right to hold
office as "Acting City Engineer of Cabanatuan City" was merely temporary. It lapsed upon the
appointment of Nerito Santos as the permanent city engineer of Cabanatuan City on August 18,
1986.
Petitioner was the incumbent city engineer of Palayan City when he was designated as Acting
City Engineering of Cabanatuan City. There is a difference between an appointment an
appointment and a designation. Appointment is the selection by the proper authority of an
individual who is to exercise the functions of an office. Designation, on the other hand, connotes
merely the imposition of additional duties, upon a person already in the public service by virtue
of an earlier appointment or election (Santiago vs. Commission on Audit, 199 SCRA 125;
Political Law Review by Gonzales, pp. 184-185). A mere "designation" does not confer upon the
designee security of tenure in the position or office which he occupies in an "acting" capacity
only. Thus did this Court made such a distinction:
Appointment may be defined as the selection, by the authority vested with the
power, of an individual who is to exercise the functions of a given office. When
completed, usually with its confirmation, the appointment results in security of
tenure for the person chosen unless he is replaceable at pleasure because of the
nature of his office. Designation, on the other hand, connotes merely the
imposition by law of additional duties on an incumbent official . . . It is said that
appointment is essentially executive while designation is legislative in nature.
Designation may also be loosely defined as an appointment because it likewise
involves the naming of a particular person to a specified public office. That is the
common understanding of the term. However, where the person is merely
designated and not appointed, the implication is that he shall hold the office only
in a temporary capacity and may be replaced at will by the appointing authority.
In this sense, the designation is considered only an acting or temporary
appointment, which does not confer security of tenure on the person named.
Even if so understood, that is, as an appointment, the designation of the petitioner
cannot sustain his claim that he has been illegally removed. . . Appointment
involves the exercise of discretion, which because of its nature cannot be
delegated." (Binamira vs. Garrucho, 188 SCRA 158.)
Consequently, the designation of petitioner as Acting City Engineering of Cabanatuan City
merely imposed upon him the additional function of the City Engineer of Cabanatuan City on top
of his regular duties as City Engineer of Palayan City. He may claim security of tenure as City
Engineer of Palayan City but he may not lay such a claim to the position of City Engineering of
Cabanatuan City for he holds no appointment to the latter office.
The power of appointment is essentially discretionary. Its exercise may not be controlled by the
courts. The choice of an appointee from among qualified candidates or applicants is a political
and administrative decision calling for considerations of wisdom, convenience, utility and the
interests of the service which can best be made by the head of office concerned for he is familiar
with the organizational structure and environmental circumstances within which the appointee
must function. (Lusterio vs. Intermediate Appellate Court, 199 SCRA 255.) The appointing
authority in this particular case is the Mayor of Cabanatuan City (B.P. Blg. 337 or the Local
Government Code which provides that "the city engineer shall be appointed by the city mayor,
subject to civil service law, rules and regulations"). The appointment of Santos by OIC City
Mayor Vergara was valid and binding for it was confirmed by the Minister of Public Works and
Highways, and approved by the Civil Service Commission.
An action for quo warranto may be commenced by "a person claiming to be entitled to a public
office or position usurpred or unlawfully held or exercised by another" (Sec. 6, Rule 66, Rules of
Court). Inasmuch as the petitioner does not aver that he is entitled to the office of City Engineer
of Cabanatuan City and that Nerito L. Santos is a mere usurper of said office, the Court of
Appeals committed no reversible error in dismissing petitioner's action for quo warranto.
Petitioner's ouster upon, and by virtue of, Santos' appointment as City Engineer of Cabanatuan
City, was not illegal for the petitioner's right to discharge the functions of Acting City Engineer
of Cabanatuan City was extinguished when a permanent appointment to the same office was
made in favor of the private respondent, Engineer Nerito L. Santos.
WHEREFORE, the petition for review is DENIED. The decision of the Court of Appeals
dismissing petitioner's action for quo warranto is AFFIRMED. Costs against the petitioner.
SO ORDERED.
ORCULLO VS CSC
G.R. No. 138780 May 22, 2001
NORBERTO ORCULLO, JR., petitioner, vs. CIVIL SERVICE COMMISSION and
COORDINATING COUNCIL OF THE PHILIPPINE ASSITANCE PROGRAM,
respondents.
KAPUNAN, J .:
Petitioner Norberto A. Orcullo, jr. was hired as Project Manager IV by the Coordinating Council
of the Philippine Assistance Program (CCPAP)-BOT Center effective march 11, 1996. His
employment was contractual and co-terminous with the said project which was to end on January
30, 2000.
1
On September 23, 1996 or six (6) months from his assumption to office, petitioner
received a Memorandum, dated September 20, 1996, from one Jorge M. Briones, Assistance
Director of CCPAP, terminating petitioner's contractual employment with said agency effective
September 30, 1996.
2

In a Letter dated September 20, 1996, Undersecretary Francisco F. del Rosario, Executive
Director of CCPAP, confirmed petitioner's termination as project manager of CCPAP.
Aggrieved by his dismissal, petitioner appealed the same to the Civil Service Commission (CSC).
On April 2, 1997, the respondent CSC issued resolution No. 972309 dismissing petitioner's
appeal. The CSC found that:
xxx the appointment of Orcullo is contractual and co-terminous with the Philippine
Assistance Program Support Project and that it carries the stipulated condition "Unless
terminated sooner." The latter condition has not been qualified by any safeguard.
Appellant Orcullo, when he accepted said contractual-co-terminous anytime. He is, thus,
not protected by the security of tenure clause of the Constitution. The contract is the law
between the parties. And whatever is stipulated therein governs the relationship between
the parties. Said stipulations in the contract may include the mode or manner of
separations. And the cause therefore includes and is not proscribed to derogatory record,
misbehavior or incompetence or hostile attitudes. In the instant case, appellant was
separated from the service particularly for unsatisfactory performance. (Underscoring
ours)
On the issue of the proper official who should effect such termination, the next lower
official who should effect such termination, the next lower official of the Center may do
so. In this case, said separation was later validated by the confirmation of the head
office.
3

Petitioner filed a motion for reconsideration of the above resolution. On June 17, 1997, the CSC
denied said motion in its Resolution No. 973099.
On July 30, 1997, petitioner, through counsel, filed a petition for review with the Court of
Appeals.
On August 14, 1998, the Court of Appeals rendered a decision, the dispositive portion of which
reads as follows:
WHEREFORE, for lack of merit, the petition in the above entitled case is hereby
DISMISSED. Costs against petitioner.
SO ORDERED.
Hence, this petition. Petitioner raises the sole issue of whether employees in the public service,
regardless of their status of employment, are protected by the tenurial security right embodied in
the Constitution.
Petitioner argues that, contrary to the findings of the CSC, the phrase "unless terminated sooner"
refers not to the duration of his employment, but the duration of the PAPS support project itself.
He claims that since the PAPS project was still ongoing, his services cannot be terminated
without just cause and without the observance of due process. He asseverates that even co-
terminous employees like himself enjoy security of tenure as embodied in the Constitution.
Petitioner's arguments are bereft of merit.1wphi1.nt
It is undisputed that petitioner's employment with CCPAP is contractual and co-terminous in
nature. Such a co-terminous employment falls under the non-career service classification of
positions in the Civil Service:
Sec. 9. Non-Career Service. - The Non-Career Service shall be characterized by (1)
entrance on bases other that those of the usual tests of merit and fitness utilized for the
career service; and (2) tenure which is limited to a period specified by law, or which is
coterminous with that of the appointing authority or subject to his pleasure, or which is
limited to the duration of a particular project for which purpose employment was made.
(Underscoring ours)
The Non-Career Service shall include:
xxx
(4) Contractual personnel or those whose employment in the government is in
accordance with a 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.
xxx
5

Additionally, Section 14 of the Omnibus Rules Implementing Book V of Executive Order No.
292 provides:
Sec. 14. An appointment may also be co-terminous which shall be issued to a person
whose entrance and continuity in the service is based on the trust and confidence of the
appointing authority or that which is subject to his pleasure, or co-existent with his tenure,
or limited by the duration of project or subject to the availability of funds. (Underscoring
ours)
The co-terminous status may thus be classified as follows:
(1) Co-terminous with the project - when the appointment is co-existent with the duration
of a particular project for which purpose employment was made or subject to the
availability of funds for the same;
(2) Co-terminous with the appointing authority - when appointment is co-existent with
the tenure of the appointing authority or at his pleasure;(Underscoring ours)
(3) Co-terminous with the incumbent - when the appointment is co-existent with the
appointee, in that after the resignation, separation or termination of the services of the
incumbent the position shall be deemed automatically abolished; and
(4) Co-terminous with a specific period - appointment is for a specific period and upon
expiration and upon thereof, the position is deemed abolished.
A perusal of petitioner's employment contract will reveal that his employment with CCPAP is
qualified by the phrase "unless terminated sooner." Thus, while such employment is co-
terminous with the PAPS project, petitioner nevertheless serves at the pleasure of the appointing
authority as this is clearly stipulated in his employment contract. We agree with the appellate
court's interpretation of the phrase "unless terminated sooner" to mean "that his contractual job
as Project Manager IV from March 11, 1996 to January 30, 2000 could end anytime before
January 30, 2000 if terminated by the other contracting party-employer CCPAP." We quote with
approval said court's ruling on the matter, thus:
xxx. The employment contract is written in plain and unambiguous language. With
petitioner's stature, he could not have misunderstood it. Petitioner cannot now renege
from the stipulation invoking security of tenure under the Constitution and the Civil
Service Law. The fact is he belongs to the non-career service whose appointment is co-
terminous, meaning his entrance and continuity in the service is based on trust and
confidence of the appointing power.
6
(underscoring ours)
Granting arguendo that said disputed phrase refers not to the duration of petitioner's employment,
but to the project itself, nevertheless, petitioner was validly terminated for cause. The records
will show that petitioner garnered an unsatisfactory rating during the probationary period of his
employment.
7
After due notice, he was subsequently dismissed because of his inability to work
with the other staff members of the project and to participate effectively in meetings regarding
the project, resulting in loss of trust in him by his superiors. The much can be gleaned form the
Memorandum as follows:
This is to confirm my verbal advise to you made last 4 September 1996 regarding your
unsatisfactory performance during the probationary period of your contractual
employment with the CCPAP BOT Center.
As advised, your inability to work with the other staff in the Center as well as participate
in outside meetings are the main reasons for the rating which have resulted in the loss of
my confidence in your ability to do your job as a Manager. (Underscoring supplied)
xxx
8

Finally, we find petitioner's claim that he was deprived of due process unavailing. The Court of
Appeals found that petitioner was informed of his unsatisfactory performance in his job as
project manager about two weeks prior to his termination. Thereafter, upon receipt of the
memorandum terminating his services, petitioner filed a complaint-appeal to the CSC. When the
CSC affirmed his dismissal in its Resolution, dated April 2, 1997, petitioner filed a motion for
reconsideration thereof. Thus, he cannot now claim that he was not given the opportunity to be
heard.
WHEREFORE, the instant petition for certiorari is hereby DISMISSED for lack of merit.
SO ORDERED.
AMBAS VS BUENASEDA
G.R. No. 95244 September 4, 1991
DRS. ELLEN AMBAS, JOANNE DE LEON, MARIE ESTELLA GUNABE, NERISSA
BERNAL, RICARDO TOLENTINO and RAUL CHRIZALDO E. MORENA, petitioners,
vs. DRS. BRIGIDA BUENASEDA and EFREN REYES; THE SECRETARY OF
HEALTH; MERIT SYSTEMS PROTECTION BOARD; AND CIVIL SERVICE
COMMISSION, respondents.
R E S O L U T I O N

PADILLA, J .:p
Prior to their termination from employment, which is the subject of the petition at bar, petitioners
were employed and retained as resident trainee physicians by the Department of Health, assigned
to the National Center for Mental Health NCMH for purposes of brevity), under the Residency
Program of the government. By authority of the Secretary of Health, petitioners were issued
temporary appointments as resident trainees on the following dates:
1
. Ambas, Ellen C. October 14, 1988
2. Bernal, Nerissa C April 28, 1989
(Renewal)
3. De Leon, Joanne October 13, 1988
4. Gunabe, Marie Stella October 20, 1988
5. Morena, Raul
Chrizaldo
December 29, 1988
6. Tolentino, Ricardo U. February 24, 1989
(Renewal)
xxx xxx xxx
1

Individual contracts of residency training were entered into by and between petitioners and the
NCMH, wherein it was stipulated, among others, that NCMH would temporarily employ
petitioners as resident trainees for one (1) year, renewable every year but not to exceed four (4)
years; that the resident trainee would not engage in private practice of his profession even
outside his regular office hours; and that NCMH reserves the right to terminate the training of a
resident trainee for poor performance or failure to meet the standards of medical ethics,
performance and behavior, as evaluated by the Teaching/Training Staff of NCMH.
2

In an undated confidential report,
3
the NCMH Medical Training Officer, Dr. Efren Reyes,
recommended the termination of petitioners' services because of poor academic performance and
low ranking. In addition to the foregoing grounds cited, petitioner Dr. Raul Chrizaldo Morena
was also found to have violated the Code of Conduct of Resident Physicians. The
recommendation of the Training Officer for the termination of petitioners' services was based on
the result of an evaluation conducted by the Residency Evaluation Committee on 16 June 1989
of all NCMH resident trainees.
In letters
4
dated 16 June 1989, petitioners were individually informed of the termination by the
Residency Evaluation Commission committee of their services effective 1 July 1989, with the
approval of the NCMH Chief. Twice, petitioners wrote to the Secretary of Health questioning
their termination. When they received no reply, they wrote a letter-complaint to the Chairman of
the Civil Service Commission. The Civil Service Commission (CSC) also failed to act on their
letter-complaint, thus prompting them to assail their termination before the Merit Systems
Protection Board (referred to hereinafter as the Board), docketed as MSPB Case No. 299. They
alleged that the termination of their services by NCMH was arbitrary and violative of the
existing civil service laws, regulations and the provisions of PD 1424 governing the residency
training program in government hospitals.
In an indorsement dated 17 August 1989, the letter-complaint filed by petitioners with the
Secretary of Health was referred by the latter to the CSC for appropriate action. In the same
indorsement, the Secretary of Health confirmed the action of NCMH in terminating petitioners'
services as resident trainees.
5

On 28 August 1989, the Board rendered a decision
6
declaring petitioners' termination as not
valid and ordered their reinstatement to their former positions. It was the opinion of the Board
that the power to remove petitioners belongs to the appointing authority, namely, the Secretary of
Health, and that, therefore, the NCMH through its representative has no power to remove the
petitioners.
After receipt of the decision of the Board, petitioners on 4 September 1989 filed a motion for
execution of said decision.
7
Before said motion could be acted upon by the Board, an-exparte
manifestation
8
was filed by petitioners in connection with the 3rd Indorsement of the Secretary
of Health dated 17 August 1989.
On 14 September 1989 another ex-parte motion was filed by petitioners, with the Board seeking
clarification of the decision on the issue of seniority, as well as salaries and benefits accrued
prior to their termination.
9
On the same date, the NCMH through its Chief moved for
reconsideration of the 28 August 1989 decision of the Board, alleging that the Board failed to
appreciate the fact that the termination of petitioners' services was done in good faith and with
the approval and/or confirmation of the Secretary of Health; and that as "temporary" appointees,
petitioners could be terminated from employment at any time with or without cause.
Opposing the NCMH's motion for reconsideration, petitioners contended that the renewal of
appointment of a resident trainee is discretionary upon the Secretary of Health; that the
designation in their appointment as "temporary' does not remove the permanency of petitioners'
appointment during the period of their training; and that the motion for reconsideration filed by
NCMH was a "mere scrap of paper" because petitioners were not furnished with a copy of said
motion.
10

Taking cognizance of the affirmation and/or confirmation by the Secretary of Health of
petitioners' termination, the Board set aside its 28 August 1989 decision in a resolution dated 25
October 1989, declaring that
The affirmation or concurrence of the appointing authority in their termination is
tantamount to a curative act relative to the previous act effected by the Medical
Training Officer and approved by the Medical Center Chief, NCMH. In effect, it
was the appointing authority that terminated their services.
xxx xxx xxx
It bears stressing that under the laws (R.A. 1243 as amended by R.A. 2251;
further amended by P.D. 1424) governing the Residency Training provide that
they shall be appointed for a period of one year renewable every year in the
discretion of the Secretary of Health or the Secretary of National Defense as the
case may be ...' These laws did not mention the permanency of their appointments
during the duration of the training. It merely states renewable every year subject
to the sound discretion of the appointing authorities. Non-renewal is merely an
expiration of the term of the appointment. Even the petitioners (now oppositors),
through counsel admitted that the renewal of the appointment of a resident is
discretionary. The renewal extended to some trainees cannot also automatically
acquire permanency since it mentioned TEMPORARY on the face of the
appointments.
The execution of the contract by the resident trainees necessarily follows the
acceptance of the terms and conditions of the contract. In the same manner that
the acceptance of a temporary appointments is also tantamount to the submission
to the legal consequences, that is that he can be terminated at anytime with or
without cause.
For clarification, it must be stated that petitioners are entitled to back salaries
from the time they were illegally terminated up to the time their termination was
affirmed and concurred in by the appointing authority Secretary of Health.
xxx xxx xxx
11

Upon receipt of said resolution, an appeal was filed by petitioners with CSC assailing the finding
of the Board that they are only entitled to back salaries from the time of their termination on 1
July 1989 to the time of the confirmation of their termination by the Secretary of Health on 17
August 1989.
On 5 September 1990, the CSC affirmed the 25 October 1989 resolution of the Board, holding
that since the nature of their appointment was temporary, their services could be terminated with
or without cause. The CSC declared that the contract signed by petitioners with NCMH bound
them to the condition stated therein that their training may be terminated on the ground of poor
performance, or in case of failure on their part to meet the standards of medical ethics and
behavior; and that as authorities in their own field of specialization, the evaluation conducted by
the Committee as to petitioners' performance during their training is presumed' regular.
12

Under the Hospital Residency Law governing the residency program in government service, the
appointment of resident trainees is limited to a period of one (1) year, renewable every year not
exceeding the duration of the training program in a particular field of medicine, at the discretion
of the Secretary of Health or National Defense, as the case may be.
13
The supervision and
control of the government training program are under either the Secretary of Health or Secretary
of National Defense.
14
Inasmuch as the NCMH is under the Department of Health, it is the
Secretary of Health who has the authority to appoint as well as remove the resident trainees. The
power to remove is deemed lodged in the same body or person in which the power to appoint is
vested.
15

Petitioners' appointment pursuant to the Hospital Residency Law was for a fixed period of one (1)
year. Prior to the expiration of the term, petitioners could be removed only for just cause. The
fact that petitioners' appointments were classified as "temporary" did not grant a blanket
authority to the Secretary of Health to remove them at anytime without cauge for the term fixed
by law protects the right of the resident trainees from being removed from office without cause.
A "term" of office fixed by law allows the appointee to hold office, perform its functions, and
enjoy its privileges and emoluments until the expiration of said period.
16
It is the definite period
of time prescribed by law by which an officer may hold office.
17

The separate appointments extended to petitioners were for a definite period of one (1) year.
Applying the provisions of the Hospital Residency Law to the expiration of the term of one (1)
year, petitioners' appointments could be renewed only at the discretion of the Secretary of Health.
The non-renewal of their appointments with or without cause at the end of their term, is a valid
mode of termination.
Records show that the termination of petitioners' services by NCMH on 1 July 1989 which was
thereafter affirmed by the Secretary of Health on 17 August 1989, was made before the
expiration of their respective terms. Inasmuch as their term had not expired at the time of their
termination or dismissal, it is necessary that such removal be for cause.
Based on the result of evaluation conducted by the Residency Evaluation Committee on 16 June
1989, petitioners obtained a poor rating in academic performance and a low ranking in said
evaluation.
18
The Board recommended their termination for the following reasons:
1. DR. ELLEN AMBAS First Year Resident Physician Poor academic
performance in the past two quarter evaluation. Board's decision was unanimous.
2. DR. JOANNE DE LEON First year Resident Physician Low ranking in the
overall performance evaluation. Case observational report made by her continuing
supervisor points to poor academic performance as expected of her year level (Dr.
Galvez), and her hysterical personality trait does not augur well as a Psychiatrist
in training. (Dr. Laraya).
3. DR. MARIE STELLA GUNABE First Year Resident Phys. Low academic
performance. Dr. Galvez described her as a scatter brain in her work.
4. DR. RICARDO TOLENTINO Second Year Resident Phys. Poor academic
performance. This rating have been (sic) noted as early as his first year of training
but was given a 'chance' to change but to no avail.
5. DR. NERISSA BERNAL Second Year Resident Physician Poor academic
performance. She ranked second to the last among her peers. Marked defect in
attitudinal and interpersonal behavior was consistently noted in her two major
areas of rotation.
6. DR. RAUL MORENA Second Year Resident Physician Poor academic
performance. Violation of the Code of Conduct of Resident Physicians. He
received several warnings and advises from clinical supervisors and chief of
services about this problem.
19

The training of petitioners under the Psychiatric Residency Program with NCMH involved a
special field of medicine. Because of the nature of their training in psychiatry, the NCMH had
the right to set a standard to be met by the resident trainees, to produce graduates who are
qualified and skilled in the said field. To attain this purpose, the NCMH recommended to the
Secretary of Health the termination of resident trainees who failed to come up to the standard set
for such program.
However, the NCMH had no power to terminate the trainees. Only the Secretary of Health, as
the appointing authority, had the power to remove them from the service. Thus, the removal of
petitioners by NCMH effective 1 July 1989 was not valid. But, the confirmation on 17 August
1989 made by the Secretary of Health of petitioners' termination had the force and effect of a
valid removal, effective on the date such confirmation was made.
The Secretary of Health did not commit grave abuse of discretion in terminating petitioners from
the service because the same was done with just cause, i.e., the petitioners' poor academic
performance and low ranking in the evaluation conducted by the Residency Evaluation
Committee of NCMH. Under the circumstances, the valid removal of petitioners took effect only
17 August 1989, and, therefore, they are entitled to backwages from 1 July 1989 to 17 August
1989.
There is no merit to petitioners' claim that they were deprived of due process because they were
not given notice of the motion for reconsideration filed by respondent Dr. Buenaseda, on behalf
of NCMH. Although petitioners were not duly furnished any notice of said motion, they were
nonetheless able to file their arguments or opposition to the allegations raised therein, before the
said motion for reconsideration was resolved by the Board, reversing its original decision.
ACCORDINGLY, the petition is DISMISSED.
SO ORDERED.
PROVINCIAL VS TEMPORARY APPOINTMENT
REGIS VS OSMENA
G.R. No. L-26785 May 23, 1991
DEOGRACIAS A. REGIS, JR., petitioner, vs. SERGIO OSMEA, JR., VICENTE
PACIFICO, CITY OF CEBU, CITY COUNCIL OF CEBU, CITY TREASURER AND
CITY AUDITOR, respondents.
DAVIDE, JR., J .:p
This is an appeal from the Decision
1
of the Court of First Instance of Cebu dated 28 December
1965 in Civil Case No. R-8778, dismissing the petition for Mandamus filed on 9 March 1965 by
petitioner to compel respondents to reinstate him to his former position as driver, Motorized
Section of the Cebu City Police Department (CPD), with back salaries from the date of his ouster
until reinstatement, and to pay him moral and exemplary damages and attorney's fees.
2

The material operative facts in this case, as admitted by the parties in the stipulation of facts they
submitted in the court below and as established by the other evidence introduced by them
pursuant to the reservations they made in the stipulation of facts are as follows:
I. Per stipulation of facts:
3

1. On January 8, 1958, petitioner was appointed by then Cebu City Mayor,
Ramon Duterte, as driver, Motorized Division of the Cebu Police Department,
with a yearly compensation of P1,440.00, as shown by a true copy of his
appointment hereto attached and marked Annex "A";
2. On January 8, 1960, petitioner was issued another appointment as "driver" of
the Cebu Police Department, at an increased yearly compensation at P1,560.00, a
true copy of which is hereto attached and marked Annex "A-1";
3 On December 21, 1961, petitioner was issued another appointment by then
Cebu City Mayor Carlos J. Cuizon as "Driver, Civilian Employee" of the Cebu
Police Department at the increased yearly compensation of P1,920.00 a true copy
of which is hereto attached and marked as Annex "A-2";
4. On November 7, 1963, petitioner was extended an appointment as "driver
(Radio Patrol) Civilian Employee" of the Cebu Police Department at the increased
yearly compensation of P2,040.00, true copy of which is marked as Annex "A-3";
5 On April 14, 1964, petitioner was removed from his position in the Cebu Police
Department without prior investigation or hearing, the termination having been
made in a letter of dismissal quoted as follows:
REPUBLIC OF THE PHILIPPINES
CITY OF CEBU
Office of the Mayor
April 14, 1964
Mr. Deogracias A. Regis, Jr.
Driver, Cebu Police Department
Cebu City
Sir:
There being no more need for your service as Driver in the Cebu Police
Department, your provisional appointment thereto is hereby terminated effective
April 16, 1964. Please turn over any government property that may have been
issued to you to the proper property custodian and have yourself cleared of any
accountability during the period of your service.
Respectfully,
By order of the Mayor:
(SGD.) Vicente V. Pacifico Secretary to the Mayor
6. Petitioner is a civil service eligible, having passed the patrolman and/or
detective (qualified) civil service examination on July 20, 1963 with a rating of
76.85% as shown in the attached copy of "Report of Ratings" marked Annex "B";
7. Petitioner is a fourth year student in the College of Liberal Arts in the
University of the Visayas as shown by the attached certification marked Annex
"C";
8. The position of the petitioner, after his removal, was filled up by the respondent
City Mayor with the appointment of Eduardo Gabiana, a non-civil service eligible
as shown in his appointment hereto attached and marked Annex "D";
9. On August 20, 1964, after his removal, the petitioner addressed similarly
worded letters to the President of the Philippines and the Civil Service
Commissioner, hereto attached as Annexes "E" and "E-1", protesting and
appealing his unlawful removal and demanding his reinstatement. Under date of
September 4, 1964, the Executive Secretary to the President indorsed the above-
mentioned letter to the Commissioner of Civil Service, as shown in the first
indorsement hereto attached as Annex "E-2". Since the filing of the instant action,
the petitioner has not been afforded the relief of reinstatement by either the Office
of the President of the Philippines or by the Civil Service Commissioner.
Parties, however, will submit evidence to establish facts not herein stipulated.
Cebu City, August 20, 1965.
(SGD.) FERNANDO S. RUIZ (SGD.) JOSE BATIQUIN
(T) FERNANDO S. RUIZ (T) JOSE BATIQUIN
Attorney for the Assistant City Fiscal
Petitioner Counsel for the
2nd Floor, Aboitiz Respondents
Building Cebu City
Magallanes corner
Jakosalem
Cebu City
II. Per additional evidence formally adduced during the hearing:
10. Petitioner received his civil service eligibility for patrolman-detective on 8
March 1964, a photostatic of which was filed, for record purposes, with the clerk
in charge of the record section of the CPD on 12 March 1964 (Exhs. "F", "F-1");
his efficiency rating is 88%, the highest among the drivers of the CPD he is the
only civil service eligible among the drivers in the CPD; after his ouster, the City
of Cebu created positions of drivers; and he attributed his ouster to politics,
alleging that he was being suspected as a supporter of the faction of then
Congressman Durano, the political rival of respondent Mayor Osmea;
4
and
11. The records of the Regional Office of the Civil Service Commission in Cebu
City do not show that petitioner possesses any civil service eligibility at the time
he was appointed as driver.
5

This Court further observes that the actions of the Civil Service Commission on the
appointments of petitioner admitted in the Stipulation of Facts and attached thereto as Annexes
"A", "A-1", "A-2" and "A-3" were as follows:
1. Appointment dated 8 January 1958 Noted as temporary pending receipt of
the required medical certificate, subject to availability of funds and provided that
there is no pending administrative or criminal case against appointee and that the
separation of the former incumbent is in order;
2. Appointment dated 8 January 1960 Approved under Section 24(c) or R.A.
No. 2260 as an exception to Section 256 of the Revised Administrative Code, and
subject to availability of funds;
3. Appointment dated 21 December 1961 Approved under Section 24(c) of
R.A. No. 2260, subject to availability of funds and as exceptional case under Sec.
256 of the Revised Administrative Code, provided there is no pending
administrative or criminal case against the appointee and provided that his
efficiency rating for the semester ending 6-30-61 is not below 85%; and
4. Appointment dated 7 November 1963Approved under Section 24(c) of R.A.
No. 2260, subject to availability of funds and subject to Section 20 of R.A. No.
2260, provided there is no pending administrative or criminal case against the
appointee.
The last three appointments were for salary adjustments.
In its Decision of 28 December 1965, the court below dismissed the petition on the ground that
petitioner's questioned appointment was temporary in nature and, therefore, terminable at the
pleasure of the appointing power. Expounding on this, it says:
xxx xxx xxx
As for the first issue the answer is that his status at the time of his ouster on April
16, 1964 was that of temporary driver of the CPD. His appointments on January 8,
1958, January 8, 1960, December 21, 1961 and on November 7, 1963 were all
temporary in nature. It is true that on March 5, 1964 the Civil Service
Commission certified to his having passed the patrolman/detective civil service
examination with a rating of 75.85%, but said examination is not intended for or
appropriate to, the position of driver; hence, it did not convert his temporary
status of driver to a permanent one. (Sec. 8, Rule IV, Civil Service Rules.) Then
again, the mere certification of the Civil Service Commission of his civil service
eligibility for patrolman/detective did not amount to his appointment. The
appointing power, the City Mayor, has the right of choice which he may exercise
freely according to his judgment, deciding for himself who is best qualified for
any competitive position in the Civil Service. The Civil Service Commission does
not ensure any appointment; it only certifies an eligible to be possessed of the
qualification, as required for a position classified under its rules. (Jimenez vs.
General Francisco, etc., et al., G.R. No. L-9699, Feb. 28, 1957; Vol. 53 O.G. Aug.
15, 1957, p. 4804.)
The appointment of the petitioner being temporary or provisional in nature, the
duration of temporary appointment should not exceed six months. (Sec. 24, Rep.
Act 226.) After the expiration of said period, petitioner could have been removed
at will by the appointment power; his continuance thereafter as a temporary
employee was only an extension of grace. (Jimenez vs. General Francisco, etc., et
al., supra.)
Temporary appointment is similar to one made in an acting capacity, the essence
of which lies in its temporary character and its terminability at pleasure by the
appointing power. And one who bears such an appointment cannot complain if it
is terminated at a moment's notice. (Cuadra vs. Cordova, G.R. No. L-11602, April
21, 1958; Vol. 54 O.G. Dec. 8, 1958, p. 8063.)
6

Hence, this appeal.
In his Brief petitioner assigns only one error: The court a quo erred in dismissing his petition.
7

In support thereof he argues that his removal on the ground that there was "no more need for
your service" was not real and true but a mere pretext, for after his ouster one Eduardo Gabiana,
a non-civil service eligible, was appointed to the vacated position and in the succeeding budget
of the City of Cebu more positions of driver were created; at the time of his ouster he was
already a civil service eligible, having passed the patrolman-detective (qualifying) civil service
examination given in July of 1963, and respondents knew of this fact. Moreover, said removal
was not for cause, and it was done without due process in violation of Section 32 of R.A. No.
2260 which provides that 44 no officer or employee in the civil service shall be removed or
suspended except for cause provided by law and after due process."
Petitioner further argues that his last appointment of 7 November 1963 was approved under
Section 24(c) of R.A. No. 2260; therefore, it was a provisional and not a temporary appointment
as erroneously classified by the court a quo. Republic Act No. 2260 makes a distinction between
provisional and temporary appointments. The former is governed by Section 24(c) while the
latter is covered by Section 24(d) thereof. According to him, his appointment was provisional
because at the time it was extended he was not yet a civil service eligible. He was still awaiting
for the results of the examination for patrolman-detective (qualifying) given by the Civil Service
Commission in July of 1963; however, he received his report of rating on 8 March 1963
indicating that he passed it; consequently, instead of dismissing him, the City Mayor should have
extended to him a permanent appointment inasmuch as he had already become a civil service
eligible. In short, he claims that his patrolman-detective eligibility is appropriate to his position
considering the nature of his office prior to his removal which authorized him to wear the
uniform and badge of a regular member of the Cebu Police Department, carry an official firearm,
wear an ID as a regular member of the city police, and to make arrests.
Finally, petitioner submits that as member of the Cebu City Police at the time of his removal, his
separation from the service could only be done under R.A. No. 557 under which the City Mayor
can only prefer charges but cannot remove.
Respondents filed their Brief after the expiration of the reglementary period. Upon motion of
petitioner dated 29 March 1967
8
this Court ordered their brief stricken off the record.
9

We agree with the petitioner that the trial court erred in holding that his appointment is
temporary in nature. Obviously, the trial court failed to appreciate the clear distinction between a
temporary appointment and a provisional appointment. It had either confused one for the other or
considered one as synonymous with the other as shown in the opening sentence of the first
paragraph of the portions of the decision hereinbefore quoted wherein it categorized the
appointment of petitioner as "temporary or provisional in nature."
As correctly stated by petitioner, provisional appointments are governed by paragraph (c) of
Section 24 of R.A. No. 2260 while temporary appointments are covered by paragraph (d) of said
Section. For convenience We quote both paragraphs:
xxx xxx xxx
(c) Provisional appointments A provisional appointment may be issued upon
prior authorization of the Commissioner in accordance with the provisions of the
Act and the rules and standards promulgated in pursuance thereto to a person who
has not qualified in an appropriate examination but who otherwise meets the
requirements for appointment to a regular position in the competitive service,
whenever a vacancy occurs and the filling thereof is necessary in the interest of
the service and there is no appropriate register of eligibles at the time of
appointment.
(d) Temporary appointment. A person may receive a temporary appointment to
a position needed only for a limited period not exceeding six months, provided
that a preference in filling such position be given to persons on appropriate
eligible lists.
In Festejo vs. Barreras, et al., L-25074, 27 December 1969,
10
We made a distinction between a
provisional appointment and temporary appointment thus:
xxx xxx xxx
There is no basis nor logic in appellants' contention that there is no difference
between a temporary appointment under Section 24(d) of the Civil Service Act
which reads thus:
Temporary Appointment. A person may receive a temporary
appointment to a position needed only for a limited period not
exceeding six months, provided that preference in filing such
position be given to persons on appropriate eligible lists.
and a provisional appointment under Section 24(c) which says:
Provincial appointment. A provisional appointment may be
issued upon the prior authorization of the Commissioner in
accordance with the provisions of this Act and the rules and
standards promulgated in pursuance thereto to a person who has
not qualified in an appropriate examination but who otherwise
meets the requirements for appointment to a regular position in the
competitive service, whenever a vacancy occurs and the filling
thereof is necessary in the interest of the service and there is no
appropriate register of eligibles at the time of appointment.
According to appellants, "while they may be different in the degree of
permanence, in that temporary appointments are generally for and within
specified periods of time, their nature as being subject to termination by the
appointing power remains the same." Such contention petition is untenable.
Even from a cursory reading of these two provisions, one can readily see that each
of them contemplates an entirely different situation from the other. Indeed, as
pointed out by His Honor, the trial judge, it is contrary to the ordinary rules of
legal hermeneutics to assume that the lawmakers intended these two separate
provisions in a seemingly single enumeration of categories of appointments to
have the same import or significance. Whereas a temporary appointment is
designed to fill "a position needed only for a limited period not exceeding six
months, a provisional appointment, on the other hand, is intended for the
contingency that "a vacancy occurs and the filling thereof is necessary in the
interest of the service and there is no appropriate register of eligibles at the time
of appointment." In other words, the reason for extending a provisional
appointment is not because there is an occasional work or job to be done which is
expected to be finished in not more than six months but because the interest of the
service requires that certain work be done or functions be performed by a regular
employee, only that there is no one with appropriate eligibility, who can be
appointed to do it, hence any other eligible may be appointed to perform such
work or functions in the meanwhile that a suitable eligible does not qualify for the
position. This is clearly implied by the mandate of the provision that a provisional
appointment may be extended only to "a person who has not qualified in an
appropriate examination but who otherwise meets the requirements for
appointment to a regular position in the competitive service," meaning one who
must anyway be a civil service eligible. On the other hand, again, in the case of a
temporary appointment, all that the law enjoins is that "preference in filling such
position be given to persons on appropriate eligible lists." And merely giving
preference, of course, presupposes that even a non-eligible may be appointed. As
a matter of fact, under this provision, even if the appointee has the required civil
service eligibility, his appointment is still temporary, simply because such is the
nature of the work to be done. The decisions cited by appellants are not in point.
They all refer to temporary appointments as such. None of them involves a
provisional appointment like the one herein in question.
In Ata, et al. vs. Namocatcat, et al., L-39703, 30 October 1972,
11
We further elaborated on the
distinction:
. . . A provisional appointment is one which may be issued, upon the prior
authorization of the Commissioner of Civil Service in accordance with the
provisions of the Civil Service Law and the rules and standards promulgated
thereunder, to a person who has not qualified in an appropriate examination but
who otherwise meets the requirements for appointment to a regular position in the
competitive service, whenever a vacancy occurs and the filling thereof is
necessary in the interest of the service and there is no appropriate register of
eligibles at the time of appointment (Sec. 24(c), supra). On the other hand, a
temporary appointment given to a non-civil service eligible is without a definite
tenure of office and is dependent upon the pleasure of the appointing power."
(Citing Cuadra vs. Cordova, 103 Phil. 391; Pinullar vs. President of the Senate,
104 Phil. 131, 135).
As early as Piero, et al. vs. Hechanova, et al., L-22562, 22 October 1966,
12
We held:
. . . Even in the case of those holding provisional or probationary appointments . . .
the invalidity thereof can not be declared unless it is first shown that there were
appropriate eligibles at the time they were appointed . . .
In Ferrer vs. Hechanova, L-24416, 25 January 1967,
13
We held:
. . . A provisional appointment is good only until replacement by a civil service
eligible and in no case beyond thirty (30) days from the date of receipt by the
appointing officer of the certificate of eligibility (Sec. 24(c), R.A. 2260; Rule VI,
Secs. 13 and 14, Revised Civil Service Rules; Piero vs. Hechanova, supra).
In Ramos vs. Subido, L-26090, September 6, 1967,
14
We ruled:
The position in question is under the classified service; Ramos accepted Ms latest
appointment thereto, dated July 1, 1963, without having the requisite appropriate
civil service eligibility for said position. Accordingly, his appointment can only
be deemed provisional and good only until replacement by one holding such
appropriate eligibility, in no case to extend more than thirty days from receipt of
the appointing officer of the list of eligibles (Ferrer vs. Hechanova, L-24418,
January 25, 1967).
In Aguilar vs. Hon. Augusto L. Valencia, et al., L-30396, 30 July
1971,
15
We affirmed the decision of the trial court holding that provisional appointments under
Sec. 24(c) of R.A. No. 2260 can only by terminated thirty days after receipt by the appointing
power of a list of eligibles from the Civil Service Commission.
In Lamata, et al. vs. Cusi, et al., L-32619, 31 October 1972,
16
We reiterated our rulings in
Piero vs. Hechanova, Ferrer vs. Hechanova, and Ramos vs. Subido.
Accordingly, since there was no certificate of civil service eligibility received by respondent City
Mayor, the provisional appointment of petitioner remained valid and subsisting. Prior to such
receipt petitioner may only be removed for cause as provided by law under Section 32 of R.A.
No. 2260. That there was "no more need" for his service was not a valid and lawful cause and
even if it were so, it could not be availed of in this case since, as admitted by the parties,
immediately after the ouster a non-civil service eligible was appointed to replace petitioner and
more driver positions were included in the succeeding budget of the City of Cebu. These facts
negated the pretended basis for the dismissal. The real hidden cause was not that service of the
nature and character rendered by petitioner was no longer needed, but that petitioner had become
unacceptable to the appointing authority. Petitioner testified that his removal was politically
motivated, he was suspected of supporting the faction of Mr. Durano, a political enemy of
respondent City Mayor. We are not inclined to give full faith and credit to this testimony
considering that this point was not even alleged in the petition.
We agree, however, with the court below that the patrolman-detective civil service eligibility of
petitioner "is not intended for or appropriate to the position of driver; hence, it did not convert
his temporary [should be, correctly, provisional] appointment of driver to a permanent one (Sec.
8, Rule IV, Civil Service Rules)."
Section 8, Rule IV of the Civil Service Rules provides:
xxx xxx xxx
Except as otherwise provided by law, eligibility in a certain examination shall
serve as qualification for appointment only to the position or positions for which
examination was held and no horizontal or vertical conversion of eligibility or
examination rating shall be allowed.
xxx xxx xxx
In Police Commission vs. Lood, et al., L-34637, 24 February 1984,
17
We ruled:
Under the civil service law then in force, the fact that private respondent
subsequently became a civil service eligible did not ipso facto render permanent
the nature of his temporary appointment as to make the question moot and
academic.
Although this case refers to a temporary appointment, the rule laid down equally applies to a
provisional appointment.
This matter, however, had been subsequently categorically resolved in favor of holders of
provisional appointments by R.A. No. 6040, which took effect on 4 August 1969. Section 18
thereof provides:
. . . all provisional appointments made or appointments approved by the Civil
Service Commission under Section 24(C) of Republic Act Numbered Two
thousand two hundred sixty prior to the approval of this Act shall automatically
be permanent under the provisions of Section twenty-four (b) thereof as amended
by this Act, subject to the provisions of Section 16(h) of said Act as herein
amended. (emphasis supplied).
Pursuant thereto, petitioner's provisional appointment of 7 November 1963 automatically became
permanent effective 4 August 1969.
We therefore rule that petitioner's dismissal was illegal and that he should be reinstated.
He should also be granted back salaries.
However, the award for back salaries should not be from the date of his dismissal until
reinstatement. In similar cases, We limited the award for a period of five (5) years.
18

In Ginson vs. Municipality of Murcia, et al., We ruled:
Considering however, the lapse of time spanning almost twenty yearssince this
controversy rose, and considering the probability that the petitioner might have, in
the interim, acquired a new employment, we are constrained to grant her the
payment of back salaries equivalent to five (5) years without deduction or
qualification. (Citing Laganapan vs. Asedillo, supra).
We likewise order her reinstatement, subject to the condition that she has not
obtained any other employment in Murcia municipal dentist or any position for
which she is qualified by reason of civil service eligibility and subject to the
requisites of age and physical fitness. . . .
As to who of the respondents should pay the back salaries, We rule that only respondent City of
Cebu should be liable therefor. Respondent City of Cebu did not oppose the dismissal of
petitioner and the appointment in his stead of another whose salaries it thereafter paid. All
respondents were represented by the Assistant City Fiscal of Cebu City and interposed the same
defenses.
19
Moreover, after respondent Mayor Osmea vacated his office his successor, Carlos J.
Cuizon, without the objection on the part of the City of Cebu, filed a manifestation in the court
below to the effect that he adopted the position of his predecessor, Mayor Osmea, in respect to
the course of action taken against petitioner
20
In short, respondent City of Cebu confirmed or
ratified the action of the Mayor.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered REVERSING the Decision
appealed from the ORDERING the respondent City of Cebu to (a) reinstate petitioner, subject to
the condition that he has not obtained any other employment, to his position under his
appointment of 7 November 1963, or to any position of equivalent rank, or for which he is
qualified by reason of civil service eligibility and subject to the requisites of age and physical
fitness, (b) pay petitioner back salaries, at the rate last received by him, for a period of five (5)
years without qualification and deduction and with interest at the legal rate from the date of his
illegal dismissal until the same shall have been fully paid, and (c) pay the costs.
SO ORDERED.

REGULAR VS AD INTERIM APPOINTMENT
PAMANTASAN NG LUNGSOD NG MAYNILA VS IAC
G.R. No. L-65439 November 13, 1985
PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner vs. HON. INTERMEDIATE
APPELLATE COURT, HON. FILEM0N FERNANDEZ, JR., HON. ALBINA
MANALODANS as Commissioners of Civil Service Commission and HERNANI P.
ESTEBAN, respondents.
GUTIERREZ, JR., J .:
The sole issue raised in this petition is the status of respondent Hernani Esteban's appointment as
Vice-President for Administration of the Pamantasan ng Lungsod ng Maynila that is, whether or
not he holds the position in a permanent capacity as to guarantee as security of tenure.
Respondent Esteban asserts that his appointment is permanent whereas the petitioner maintains
its temporary and contractual nature such that the respondent may be dismissed at any time even
without cause.
Prior to his joining the Pamantasan, Dr. Esteban had been a permanent employee in the
government service for twenty five (25) years. Until May 20, 1973, he was officially connected
with the Philippine College of Commerce, a state-owned educational institution as its Vice-
President for Academic Affairs. Shortly before that date, the Board of Trustees of the College in
a bold move to streamline the college organization resolve to abolish the position of Vice-
President for Academic Affairs. Private respondent was given the option to continue teaching at
the Philippine College of Commerce which he accepted until his transfer to the Pamantasan ng
Lungsod ng Maynila, upon the invitation of its president, Dr. Consuelo Blanco.
At the Pamantasan, Dr. Esteban was initially extended an ad interim temporary appointment as
Vice-President for Administration by Dr. Consuelo Blanco. Dr. Esteban received from the
Secretary of Pamantasan a 'Notification of Confirmation of Temporary Appointment' dated June
28, 1973. His appointment was 'effective May 21, 1973 until June 30, 1974, unless sooner
terminated.' On July 5, 1974, the Secretary of Pamantasan sent him a 'Notification of Renewal of
Temporary Appointment' indicating that his appointment was renewed 'effective July 1, 1974
until August 31, 1974.'
A month later, on August 30, 1974, he received from the University Secretary another
'notification of renewal of temporary appointment' informing him that the Board of Regents, on
recommendation of the President of the University approved the renewal of his appointment
'effective September 1, 1974 until June 30, 1975' with an increased salary of P17,160 per annum.
On October 15, 1974, incident to a further increase of his salary, Dr. Esteban was notified that
his appointment as vice-president for administration at a salary of P17,600 per annum had been
renewed effective September 1, 1974 until June 30, 1975.
On June 26, 1975, he received another 'Notification of Renewal of Temporary Appointment' as
Vice-President for Administration with at salary of P21,760 per annum, 'effective July 1, 1975
until June 30, 1976.'
On July 26, 1975, Dr. E qqqsteban discovered that he was not included in the list of employees
recommended for permanent appointments. He wrote Dr. Consuelo Blanco requesting the
conversion of his temporary appointment to a permanent one, considering his two and half (2)
years service.
On July 26, 1975, Dr. Esteban received an answer to his request from President Blanco who
indicated various reasons for her not acting favorably on his request.
On August 1, 1975, Dr. Esteban received a 'Notification of Ad Interim Appointment notifying
him that the president of the university had approved his appointment as Professor III with a
salary of P15,600 per annum 'effective August 1, 1975'. He was further designated as Director of
the Institute of Continuing Education and Community Service with an honorarium of P5,676 per
annum, likewise effective August 1, 1975.
On August 7, 1975, Dr. Consuelo Blanco, issued a memorandum circular terminating Dr.
Esteban's appointment as Vice-President for Administration effective July 31, 1975. His
appointment dated June 26, 1975 and effective until June 30, 1976 had been withdrawn before it
could be confirmed by the Pamantasan Board of Regents.
On the same date, August 7, 1975, Dr. Esteban appealed to the Civil Service Commission for the
protection of his tenure in the Pamantasan .
On October 9,1975, the Civil Service Commission ruled that:
The temporary nature of the appointment issued to Dr. Esteban as Vice President
for Administration is conceded. Such being the Case, his services may be
terminated at any time with or without request that he be extended permanent
appointment ,or that his temporary appointment be converted into permanent one,
it may be stated that the issuance of such appointment is addressed to the sound
discretion of the appointing official.
Dr. Esteban flied a motion for the reconsideration of that ruling. On January 14, 1976, the Civil
Service Commission ruled favorably on Dr. Esteban's motion. It stated that he was fully qualified
for the position of Vice-President for Administration and certified him "for appointment therein
under permanent status." The Commission stated:
In view thereof, and in the absence of any apparent justifiable reason why Dr.
Esteban should remian under temporary status for the length of time prior to the
withdrawal of his appointment as Vice President for Administration in that
University, and as it further appears that he is fully qualified for the position in
question in view of his extensive experience in the fields of public administration
and management, this Commission hereby certifies him for appointment therein
under permanent status.
The Pamantasan, in turn, asked for the reconsideration of that ruling.
The Commission, in an undated Resolution No. 75, Series of 1976, came out with a statement
which confused more than it clarified. It stated that its certification should not be interpreted as
directing the reinstatement of Dr. Esteban because 'it was never intended to be so
On May 28, 1976 Esteban asked the commission to reconsider Resolution No. 75, Series of 1976.
He also asked for the payment of the salaries and allowances due him as of September 1975,
which the Pamantasan had withheld. His request was denied by the commission in its undated
resolution No. 158, Series of 1976.
On September 15, 1976 Esteban reiterated his request for payment of his salaries.
On September 20, 1976, he asked for a review of the Pamantasan's decision to terminate his
appointment as Vice-President for Administration.
On December 1, 1976, his request for payment of his salaries was referred by the Commission to
the treasurer of the Pamantasan.
On July 6, 1977, the Commission again modified its earlier resolution in as case. It ruled that Dr.
Consuelo Blanco, had no authority to extend to Dr. Esteban an ad interim appointment as Vice
President for Administration as only the Board of Regents was empowered to do that under
Article 55 of the University Charter (Rep. Act 4196). However, it ruled that, as a de facto officer,
he was entitled to be paid the salary of that position.
Dr. Esteban and the Pamantasan filed motions for reconsideration of that ruling prompting the
Commission to order them to submit "all papers and documents pertinent to that case."
On June 6, 1978, Presidential Decree No.1409 was issued creating a Merits System Board in the
Civil Service Commission to hear and decide cases brought before it on appeal by officers and
employees who feel aggrieved by the determination of officials on personnel matters.
The Board required the Pamantasan to submit its complete records on the appointment and
termination of Dr. Esteban as vice-president for administration.
While the records officer of the Pamantasan submitted copies of the notices sent to Esteban
regarding his appointment as vice-president for administration, he did not submit a copy of the
Board's Resolution No. 485 passed June 20, 1973 confirming the ad interim appointments of
several academic and non-academic personnel of said university among which was that of Dr.
Hernani Esteban "effective May 21, 1973." He produced a copy of the memorandum circular
dated August 7, 1915 of the President of the Pamantasan terminating Dr. Esteban's service as of
July 31, 1975.
In Resolution No. 597 dated November 11, 1980, the Commissioner directed the Pamantasan to
submit any document or documents directly or actually showing that Dr. Hernani Esteban was
appointed vice-president for administration of the Pamantasan in a permanent capacity.
On January 15, 1981, the Pamantasan by 2nd Indorsement, despite the existence of Board
Resolution No. 485, replied that "we cannot find any document showing that Dr. Esteban was
appointed ... in a permanent capacity.
In view of the Pamantasan's failure to produce the minutes of the regular Board of Regents
meeting on June 20, 1973 when Esteban's appointment was approved the Commission in its
Resolution No. 81-279 dated March 5, 1981, concluded that there is truth to the claim of Dr.
Esteban that his appointment as Vice-President for Administration of the Pamantasan was
approved as permanent. It cited Government of the Philippine Islands vs. Martinez, (44 Phil. 817)
that when a party has it in his possession or power to produce the best evidence of which the case
in its nature is susceptible and withholds it, the fair presumption is that the evidence is withheld
for some sinister motive and that its production would thwart his evil or fraudulent purpose.
The Commission ruled that "Dr. Hernani Esteban had been appointed Vice-President for
Administration of Pamantasan with permanent status and that the temporary appointment issued
to him did not alter his permanent status as he had 'already acquired a vested right as well as the
right to security of tenure', that he cannot unceremoniously removed therefrom, nor can the
status of his appointment be changed without cause, as provided by law and after due process."
The Commission held that the termination of his services was obviously illegal. It directed his
immediate reinstatement to the position of Vice-President for Administration of Pamantasan and
the payment of his back salaries, allowances and other benefits which he failed to receive from
the time he was separated therefrom.
The Pamantasan filed a motion for reconsideration of that resolution. It also submitted for the
first time a copy of Resolution No. 485.
The Commission, in Resolution No. 71-510 dated April 23, 1981 chided the Pamantasan for
having suppressed said piece of evidence from which "the intention of, or the accurate action
taken by PLM Board of Regents on Dr. Esteban's appointment in question, may be determined."
Following the decision of the Supreme Court in the case of Summers v. Ozaeta, (81 Phil. 760),
the Commission denied the Pamantasan's motion for reconsideration and ruled that "Upon
confirmation of the Board of Regents of the ad interim appointment of Dr. Esteban the same
became permanent."
Upon getting this ruling, the Pamantasan filed a petition for certiorari against Dr. Esteban and
Civil Service Commissionssioners Filemon Fernandez, Jr. and Albina Manalo Dans. The petition
was docketed as Civil Case No. 139840 of the Court of First Instance of Manila, Branch XIII.
On January 8, 1982, the trial court rendered a decision reversing the Commission's Resolution
No. 81-279 and adopted the earlier Commission Resolution dated July 6, 1977 holding that
Private respondent Dr. Esteban's appointment was invalid, though he may be considered as a de
facto vice-president of the University up to October 9, 1975, the date when the Commission
ruled that his appointment was temporary and could be terminated at any time.
The private respondent appealed to the Intermediate Appellate Court.
On September 26, 1983. the respondent Intermediate Appellate Court rendered a decision
reversing the trial court's decision. The dispositive portion of the appellate decision reads:
Wherefore, the appealed decision is hereby revised and set aside. The
Pamantasan's petition for certiorari is denied. Resolution No 81-279 dated March
5, 1981, as well as Resolution No. 81-510 dated April 23, 1981, of the respondent
Civil Service Commission, declaring as permanent the appointment of the
appellant Dr. Hernani Esteban as vice- president for administration of the
university under the Board of Regents' Resolution No. 485 dated June 20, 1973,
and ordering his immediate reinstatement to that position with back salaries,
allowances and other benefits, is affirmed, provided he has not yet reached the
age of compulsory retirement from the government service; otherwise, he shall be
entitled to back salaries, allowances and other benefits only up to the time he
should handle been reared from the said position.
From the decision of the Intermediate Appellate Court and after its motion for reconsideration
had been denied petitioner Pamantasan ng Lungsod ng Maynila filed the present petition, now
the subject of this review.
We find no error in the pronouncements of the Intermediate Appellate Court. We rule in favor of
the respondents.
From the arguments, it is easy to see why the petitioner should experience difficulty in
understanding the situation. Private respondent had been extended several "ad-interim"
appointments which petitioner mistakenly understands as appointments temporary in nature.
Perhaps, it is the literal translation of the word "ad interim" which creates such belief. The term
is defined by Black to mean "in the meantime" or for the time being, Thus, an officer ad interim
is one appointed to fill a vacancy, or to discharge the duties of the office during the absence or
temporary incapacity of its regular incumbent (Black's Law Dictionary, Revised Fourth Edition,
1978). But such is not the meaning nor the use intended in the context of Philippine law. In
referring to Dr. Esteban's appointments, the term is not descriptive of the nature of the
appointments given to him. Rather, it is used to denote the manner in which said appointments
were made, that is, done by the President of the Pamantasan in the meantime, while the Board of
Regents, which is originally vested by the University Charter with the power of appointment, is
unable to act. Thus, we held in Summers v. Ozaeta (81 Phil. 760):
... an ad interim appointment is one made in pursuance of paragraph (4), section
10, Article VII of the Constitution, which provides that the President shall have
the power to make appointments during the recess of the Congress, but such
appointments shall be effective only until disapproval by the Commission on
Appointments or until the next adjournment of the Congress.' lt is an appointment
permanent in nature, and the circumstance that it is subject to confirmation by the
Commission on Appointments does not alter its permanent character. An ad
interim appointment is disapproved certainly for a reason other than that its
provisional period has expired. Said appointment is of course distinguishable
from an 'acting' appointment which is merely temporary, good until another
permanent appointment is issued.
Not only is the appointment in question an ad interim appointment, but the same is also a
confirmed ad interim appointment. In its Resolution No. 485, dated June 20, 1973, the
Pamantasan Board of Regents verified respondent Esteban's appointment without condition nor
limitation as to tenure. As of that moment, it became a regular and permanent appointment.
In other words, if the Board of Regents is in session, the Pamantasan President merely nominates
while the Board issues the appointment. But when the Board is not in session, the President is
authorized to issue ad interim appointments. Such appointments are permanent but their terms
are only until the Board disapproves them. If confirmed, the appointee's term is converted into
the regular term inherent in the position.
Petitioner centers its arguments and tries to fix the attention of the court to the fact that all
notices of appointments, renewals, and confirmation thereof all declare the same to be temporary,
carrying fixed commencement and termination dates, "unless sooner terminated." As expressed
by public respondent, "... This stubborn insistence is anchored on the notifications of temporary
appointment sent to private respondent Esteban by the Secretary of Pamantasan. However, this
insistence deliberately ignores ... Resolution No. 485 dated June 20, 1973 of the Board of
Regents ...". And correctly so argued. "In case of conflict between a notification issued by the
Secretary of the University which is supposed to reflect the true content of a Board Resolution
and the Resolution itself of said Board of Regents of said University, the latter is controlling for
obvious reasons. The Secretary of the University has no authority to alter or add something
which is not provided for in the Resolution of the Board of Regents ...". Thus, respondent
Intermediate Appellate Court held:
The permanent nature of appellant's appointment was not altered or diminished by
the misleading 'notifications' which were sent to him by the secretary of the
university president, referring to his appointment as 'temporary', nor by his
uninformed acceptance thereof without knowledge of the true contents of
Resolution No. 485 which the university president appears to have studiously
suppressed.
There is nothing in the Pamantasan Board of Regents' Resolution No. 485 which suggests that
respondent Esteban's appointment was temporary. The Board's action was to confirm or reject an
existing ad interim appointment. If respondent's appointment was intended to be temporary, it
should have been expressly stated. It cannot be made to rest on inconclusive evidence, specially
because a temporary appointment divests the temporary appointee of the constitutional security
of tenure against removal without cause even if he is a civil service eligible." (Tolentino v. de
Jesus, 56 SCRA 167, cited in Cortez v. Bartolome, 100 SCRA 1).
Further supporting private respondent's stand is the list of permanent personnel which was
submitted to the Commission by the university president herself on March 3, 1975 for
recognition of their permanent status by the Commission. The appellant's name was the first in
that list (Exhibit 8-B). The permanent status of private respondent's appointment as Vice-
President for Administration at Pamantasan was recognized by the Civil Service Commission in
its lst Indorsement dated April 18, 1975 upon the request of petitioner. This fact is borne out by
the records and the evidence and found as such by the Intermediate Appellate Court, the Civil
Service Commission as well as the Court of First Instance.
From the foregoing, there appears an intention to deprive private respondent of his rights as a
permanent appointee. With strained relations and differences in professional opinion between the
private respondent and the Pamantasan President, Dr. Esteban was led to believe that his services
were terminable at pleasure.
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. lt is a prerogative
of the appointing power that may be availed of without liability, provided however, that it is
exercised in good faith for the advancement of the employer's interest and not for the purpose of
defeating or circumventing the rights of the employees under special laws or under valid
agreements, and provided further, that such prerogatives are not exercised in a malicious, harsh,
oppressive, vindictive or wanton manner, or out of malice or spite (Government Service and
Insurance System v. Ayroso 96 SCRA 213). The general rule is that the power of appointment
must remain unhampered by judicial intervention. However, when the law is violated or when
there is grave abuse of discretion, we have to step in. Otherwise the situation aptly described by
newspaperman Jesus Bigornia would exist as he had written:
... With the sword of Damocles hanging over the heads of faculty members, the
university has spawned a meek, spineless, even subservient corps of professors
and instructors. (Newsman's Notes, Bulletin Today, January 23, 1976).
We cannot also sanction the termination of private respondent's services by petitioner. With his
appointment now settled as permanent., the Civil Service law and the Constitution guarantee
private respondent's security of tenure as 'No officer or employe in the Civil Service shall be
suspended or dismissed except for cause as provided by law" (Section 3, Article XII, the 1973
Philippine Constitution). Petitioner has failed to substantiate its allegations of incompetence
against respondent Esteban whose record of government service appears quite impressive.
Esteban was not dimissed for cause after proper proceedings. His appointment was terminated on
the ground that it was temporary.
The intermediate Appellate Court ordered the payment of full back salaries to Dr. Esteban
provided he has not reached the age of compulsory retirement from the government service.
It is not clear from the records as to when Dr. Esteban actually ceased working for Pamantasan.
Under the law, he is entitled to full pay, allowances, and other benefits during the period that he
was actually reporting for work and rendering services in whatever capacity, whether teaching,
research or administration. As of backwages, the amount is generally based on the equivalent of
three years' earnings (Philippine Airlines, Inc. v. National Labor Relations Commission, 126
SCRA 223; Insular Life Assurance Co., Ltd. v. National Labor Relations Commission, 135
SCRA 697). In line with the policy adopted by this Court to do away with the attendant delay in
awarding backwages because of the extended hearings necessary to prove the earnings,
elsewhere of each and every employee (Philippine Airlines, Inc. v. National Labor Relations
Commission, supra, citing Mercury Drug Co., Inc. v. Court of Industrial Relations, 56 SCRA
694), the formula for computing the same calls for fixing the award of backwages to three years.
However, in Dy Keh Beng v. International Labor and Marine Union, 90 SCRA 162, citing
Mercury Drug Co., et al. v. Court of Industrial Relations, 56 SCRA 694, 712), we held the
amount of backwages to be "subject to deduction whre there are mitigating circumstances in
favor of the employer, but subject to increase whree there are aggravating circumstances. (Tupas
Local Chapter No. 979, et al. v. National Labor Relations Commission, et al., G. R. No. 60532-
33, November 5,\1985; Progressive Development Corporation v. Progressive Employees' Union,
80 SCRA 434.) Considering that in the case at bar, more than ten (10) years have elpased from
the date respondent Esteban as to the true nature of his appointment and "studiously suppressing"
material data to effectively deprive the latter of his rights as a permanent employee, we find an
award of five (5) years backpay to respondent Dr. Esteban just and equitable under the
circumstances, assuming he has not reached retirement age in the meantime.
WHEREFORE, the petition for review on certiorari is hereby DISMISSED for lack of merit. The
decision appealed from is affirmed subject to the modification in the payment of back salaries as
stated above.
SO ORDERED.
Separate Opinions
DE LA FUENTE, J ., concurring:
I vote for the affirmance in toto of the decision of IAC. I believe that under the circumstances
there should be no reduction of the back salaries, etc.
SARMIENTO VS MISON

G.R. No. 79974 December 17, 1987
ULPIANO P. SARMIENTO III AND JUANITO G. ARCILLA, petitioners, vs.
SALVADOR MISON, in his capacity as COMMISSIONER OF THE BUREAU OF
CUSTOMS, AND GUILLERMO CARAGUE, in his capacity as SECRETARY OF THE
DEPARTMENT OF BUDGET, respondents, COMMISSION ON APPOINTMENTS,
intervenor.
PADILLA, J .:
Once more the Court is called upon to delineate constitutional boundaries. In this petition for
prohibition, the petitioners, who are taxpayers, lawyers, members of the Integrated Bar of the
Philippines and professors of Constitutional Law, seek to enjoin the respondent Salvador Mison
from performing the functions of the Office of Commissioner of the Bureau of Customs and the
respondent Guillermo Carague, as Secretary of the Department of Budget, from effecting
disbursements in payment of Mison's salaries and emoluments, on the ground that Mison's
appointment as Commissioner of the Bureau of Customs is unconstitutional by reason of its not
having been confirmed by the Commission on Appointments. The respondents, on the other hand,
maintain the constitutionality of respondent Mison's appointment without the confirmation of the
Commission on Appointments.
Because of the demands of public interest, including the need for stability in the public service,
the Court resolved to give due course to the petition and decide, setting aside the finer procedural
questions of whether prohibition is the proper remedy to test respondent Mison's right to the
Office of Commissioner of the Bureau of Customs and of whether the petitioners have a standing
to bring this suit.
By the same token, and for the same purpose, the Court allowed the Commission on
Appointments to intervene and file a petition in intervention. Comment was required of
respondents on said petition. The comment was filed, followed by intervenor's reply thereto. The
parties were also heard in oral argument on 8 December 1987.
This case assumes added significance because, at bottom line, it involves a conflict between two
(2) great departments of government, the Executive and Legislative Departments. It also occurs
early in the life of the 1987 Constitution.
The task of the Court is rendered lighter by the existence of relatively clear provisions in the
Constitution. In cases like this, we follow what the Court, speaking through Mr. Justice (later,
Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. vs. Rodriguez, 1 that:
The fundamental principle of constitutional construction is to give effect to the
intent of the framers of the organic law and of the people adopting it. The
intention to which force is to be given is that which is embodied and expressed in
the constitutional provisions themselves.
The Court will thus construe the applicable constitutional provisions, not in accordance with how
the executive or the legislative department may want them construed, but in accordance with
what they say and provide.
Section 16, Article VII of the 1987 Constitution says:
The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of the departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress.
It is readily apparent that under the provisions of the 1987 Constitution, just quoted, there are
four (4) groups of officers whom the President shall appoint. These four (4) groups, to which we
will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers
and consuls, officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution;
2

Second, all other officers of the Government whose appointments are not
otherwise provided for by law;
3

Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank
4
whose appointments the Congress may by law
vest in the President alone.
The first group of officers is clearly appointed with the consent of the Commission on
Appointments. Appointments of such officers are initiated by nomination and, if the nomination
is confirmed by the Commission on Appointments, the President appoints.
5

The second, third and fourth groups of officers are the present bone of contention. Should they
be appointed by the President with or without the consent (confirmation) of the Commission on
Appointments? By following the accepted rule in constitutional and statutory construction that an
express enumeration of subjects excludes others not enumerated, it would follow that only those
appointments to positions expressly stated in the first group require the consent (confirmation) of
the Commission on Appointments. But we need not rely solely on this basic rule of constitutional
construction. We can refer to historical background as well as to the records of the 1986
Constitutional Commission to determine, with more accuracy, if not precision, the intention of
the framers of the 1987 Constitution and the people adopting it, on whether the appointments by
the President, under the second, third and fourth groups, require the consent (confirmation) of the
Commission on Appointments. Again, in this task, the following advice of Mr. Chief Justice J.
Abad Santos in Gold Creek is apropos:
In deciding this point, it should be borne in mind that a constitutional provision
must be presumed to have been framed and adopted in the light and understanding
of prior and existing laws and with reference to them. "Courts are bound to
presume that the people adopting a constitution are familiar with the previous and
existing laws upon the subjects to which its provisions relate, and upon which
they express their judgment and opinion in its adoption." (Barry vs. Truax 13
N.D., 131; 99 N.W., 769,65 L. R. A., 762.)
6

It will be recalled that, under Sec. 10, Article VII of the 1935 Constitution, it is provided that
xxx xxx xxx
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the army from the rank of colonel, of the Navy and Air Forces from the
rank of captain or commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may by law vest the appointment
of inferior officers, in the President alone, in the courts, or in the heads of
departments.
(4) The President shall havethe power to make appointments during the recess of
the Congress, but such appointments shall be effective only until disapproval by
the Commission on Appointments or until the next adjournment of the Congress.
xxx xxx xxx
(7) ..., and with the consent of the Commission on Appointments, shall appoint
ambassadors, other public ministers and consuls ...
Upon the other hand, the 1973 Constitution provides that-
Section 10. The President shall appoint the heads of bureaus and offices, the
officers of the Armed Forces of the Philippines from the rank of Brigadier
General or Commodore, and all other officers of The government whose
appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint. However, the Batasang Pambansa may by law vest
in the Prime Minister, members of the Cabinet, the Executive Committee, Courts,
Heads of Agencies, Commissions, and Boards the power to appoint inferior
officers in their respective offices.
Thus, in the 1935 Constitution, almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments. It is now a sad part of our political history
that the power of confirmation by the Commission on Appointments, under the 1935
Constitution, transformed that commission, many times, into a venue of "horse-trading" and
similar malpractices.
On the other hand, the 1973 Constitution, consistent with the authoritarian pattern in which it
was molded and remolded by successive amendments, placed the absolute power of appointment
in the President with hardly any check on the part of the legislature.
Given the above two (2) extremes, one, in the 1935 Constitution and the other, in the 1973
Constitution, it is not difficult for the Court to state that the framers of the 1987 Constitution and
the people adopting it, struck a "middle ground" by requiring the consent (confirmation) of the
Commission on Appointments for the first group of appointments and leaving to the President,
without such confirmation, the appointment of other officers, i.e., those in the second and third
groups as well as those in the fourth group, i.e., officers of lower rank.
The proceedings in the 1986 Constitutional Commission support this conclusion. The original
text of Section 16, Article VII, as proposed by the Committee on the Executive of the 1986
Constitutional Commission, read as follows:
Section 16. The president shall nominate and, with the consent of a Commission
on Appointment, shall appoint the heads of the executive departments and
bureaus, ambassadors, other public ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain and 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 inferior officers in the President alone, in the courts, or in
the heads of departments
7
[Emphasis supplied].
The above text is almost a verbatim copy of its counterpart provision in the 1935 Constitution.
When the frames discussed on the floor of the Commission the proposed text of Section 16,
Article VII, a feeling was manifestly expressed to make the power of the Commission on
Appointments over presidential appointments more limited than that held by the Commission in
the 1935 Constitution. Thus-
Mr. Rama: ... May I ask that Commissioner Monsod be recognized
The President: We will call Commissioner Davide later.
Mr. Monsod: With the Chair's indulgence, I just want to take a few
minutes of our time to lay the basis for some of the amendments
that I would like to propose to the Committee this morning.
xxx xxx xxx
On Section 16, I would like to suggest that the power of the Commission on
Appointments be limited to the department heads, ambassadors, generals and so
on but not to the levels of bureau heads and colonels.
xxx xxx xxx
8
(Emphasis supplied.)
In the course of the debates on the text of Section 16, there were two (2) major changes proposed
and approved by the Commission. These were (1) the exclusion of the appointments of heads of
bureaus from the requirement of confirmation by the Commission on Appointments; and (2) the
exclusion of appointments made under the second sentence
9
of the section from the same
requirement. The records of the deliberations of the Constitutional Commission show the
following:
MR. ROMULO: I ask that Commissioner Foz be recognized
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, my proposed amendment is on page
7, Section 16, line 26 which is to delete the words "and bureaus,"
and on line 28 of the same page, to change the phrase 'colonel or
naval captain to MAJOR GENERAL OR REAR ADMIRAL. This
last amendment which is co-authored by Commissioner de Castro
is to put a period (.) after the word ADMIRAL, and on line 29 of
the same page, start a new sentence with: HE SHALL ALSO
APPOINT, et cetera.
MR. REGALADO: May we have the amendments one by one. The
first proposed amendment is to delete the words "and bureaus" on
line 26.
MR. FOZ: That is correct.
MR. REGALADO: For the benefit of the other Commissioners,
what would be the justification of the proponent for such a deletion?
MR. FOZ: The position of bureau director is actually quite low in
the executive department, and to require further confirmation of
presidential appointment of heads of bureaus would subject them
to political influence.
MR. REGALADO: The Commissioner's proposed amendment by
deletion also includes regional directors as distinguished from
merely staff directors, because the regional directors have quite a
plenitude of powers within the regions as distinguished from staff
directors who only stay in the office.
MR. FOZ: Yes, but the regional directors are under the
supervisiopn of the staff bureau directors.
xxx xxx xxx
MR. MAAMBONG: May I direct a question to Commissioner Foz?
The Commissioner proposed an amendment to delete 'and bureaus
on Section 16. Who will then appoint the bureau directors if it is
not the President?
MR. FOZ: It is still the President who will appoint them but their
appointment shall no longer be subject to confirmation by the
Commission on Appointments.
MR. MAAMBONG: In other words, it is in line with the same
answer of Commissioner de Castro?
MR. FOZ: Yes.
MR. MAAMBONG: Thank you.
THE PRESIDENT: Is this clear now? What is the reaction of the
Committee?
xxx xxx xxx
MR. REGALADO: Madam President, the Committee feels that
this matter should be submitted to the body for a vote.
MR. DE CASTRO: Thank you.
MR. REGALADO: We will take the amendments one by one. We
will first vote on the deletion of the phrase 'and bureaus on line 26,
such that appointments of bureau directors no longer need
confirmation by the Commission on Appointment.
Section 16, therefore, would read: 'The President shall nominate, and with the
consent of a Commission on Appointments, shall appoint the heads of the
executive departments, ambassadors. . . .
THE PRESIDENT: Is there any objection to delete the phrase 'and
bureaus' on page 7, line 26? (Silence) The Chair hears none; the
amendments is approved.
xxx xxx xxx
MR. ROMULO: Madam President.
THE PRESIDENT: The Acting Floor Leader is recognized.
THE PRESIDENT: Commissioner Foz is recognized
MR. FOZ: Madam President, this is the third proposed amendment
on page 7, line 28. 1 propose to put a period (.) after 'captain' and
on line 29, delete 'and all' and substitute it with HE SHALL ALSO
APPOINT ANY.
MR. REGALADO: Madam President, the Committee accepts the
proposed amendment because it makes it clear that those other
officers mentioned therein do not have to be confirmed by the
Commission on Appointments.
MR. DAVIDE: Madam President.
THE PRESIDENT: Commissioner Davide is recognized.
xxx xxx xxx
MR. DAVIDE: So would the proponent accept an amendment to
his amendment, so that after "captain" we insert the following
words: AND OTHER OFFICERS WHOSE APPOINTMENTS
ARE VESTED IN HIM IN THIS CONSTITUTION?
FR. BERNAS: It is a little vague.
MR. DAVIDE: In other words, there are positions provided for in
the Constitution whose appointments are vested in the President, as
a matter of fact like those of the different constitutional
commissions.
FR. BERNAS: That is correct. This list of officials found in
Section 16 is not an exclusive list of those appointments which
constitutionally require confirmation of the Commission on
Appointments,
MR. DAVIDE: That is the reason I seek the incorporation of the
words I proposed.
FR. BERNAS: Will Commissioner Davide restate his proposed
amendment?
MR. DAVIDE: After 'captain,' add the following: AND OTHER
OFFICERS WHOSE APPOINTMENTS ARE VESTED IN HIM
IN THIS CONSTITUTION.
FR. BERNAS: How about:"AND OTHER OFFICERS WHOSE
APPOINTMENTS REQUIRE CONFIRMATION UNDER THIS
CONSTITUTION"?
MR. DAVIDE: Yes, Madam President, that is modified by the
Committee.
FR. BERNAS: That will clarify things.
THE PRESIDENT: Does the Committee accept?
MR. REGALADO: Just for the record, of course, that excludes
those officers which the Constitution does not require confirmation
by the Commission on Appointments, like the members of the
judiciary and the Ombudsman.
MR. DAVIDE: That is correct. That is very clear from the
modification made by Commissioner Bernas.
THE PRESIDENT: So we have now this proposed amendment of
Commissioners Foz and Davide.
xxx xxx xxx
THE PRESIDENT: Is there any objection to this proposed
amendment of Commissioners Foz and Davide as accepted by the
Committee? (Silence) The Chair hears none; the amendment, as
amended, is approved 10 (Emphasis supplied).
It is, therefore, clear that appointments to the second and third groups of officers
can be made by the President without the consent (confirmation) of the
Commission on Appointments.
It is contended by amicus curiae, Senator Neptali Gonzales, that the second
sentence of Sec. 16, Article VII reading-
He (the President) 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 . . . . (Emphasis supplied)
with particular reference to the word "also," implies that the President shall "in like manner"
appoint the officers mentioned in said second sentence. In other words, the President shall
appoint the officers mentioned in said second sentence in the same manner as he appoints
officers mentioned in the first sentence, that is, by nomination and with the consent
(confirmation) of the Commission on Appointments.
Amicus curiae's reliance on the word "also" in said second sentence is not necessarily supportive
of the conclusion he arrives at. For, as the Solicitor General argues, the word "also" could mean
"in addition; as well; besides, too" (Webster's International Dictionary, p. 62, 1981 edition)
which meanings could, on the contrary, stress that the word "also" in said second sentence means
that the President, in addition to nominating and, with the consent of the Commission on
Appointments, appointing the officers enumerated in the first sentence, can appoint (without
such consent (confirmation) the officers mentioned in the second sentence-
Rather than limit the area of consideration to the possible meanings of the word "also" as used in
the context of said second sentence, the Court has chosen to derive significance from the fact that
the first sentence speaks of nomination by the President and appointment by the President with
the consent of the Commission on Appointments, whereas, the second sentence speaks only of
appointment by the President. And, this use of different language in two (2) sentences proximate
to each other underscores a difference in message conveyed and perceptions established, in line
with Judge Learned Hand's observation that "words are not pebbles in alien juxtaposition" but,
more so, because the recorded proceedings of the 1986 Constitutional Commission clearly and
expressly justify such differences.
As a result of the innovations introduced in Sec. 16, Article VII of the 1987 Constitution, there
are officers whose appointments require no confirmation of the Commission on Appointments,
even if such officers may be higher in rank, compared to some officers whose appointments have
to be confirmed by the Commission on Appointments under the first sentence of the same Sec.
16, Art. VII. Thus, to illustrate, the appointment of the Central Bank Governor requires no
confirmation by the Commission on Appointments, even if he is higher in rank than a colonel in
the Armed Forces of the Philippines or a consul in the Consular Service.
But these contrasts, while initially impressive, merely underscore the purposive intention and
deliberate judgment of the framers of the 1987 Constitution that, except as to those officers
whose appointments require the consent of the Commission on Appointments by express
mandate of the first sentence in Sec. 16, Art. VII, appointments of other officers are left to the
President without need of confirmation by the Commission on Appointments. This conclusion is
inevitable, if we are to presume, as we must, that the framers of the 1987 Constitution were
knowledgeable of what they were doing and of the foreseable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in character. Limitations
on or qualifications of such power should be strictly construed against them. Such limitations or
qualifications must be clearly stated in order to be recognized. But, it is only in the first sentence
of Sec. 16, Art. VII where it is clearly stated that appointments by the President to the positions
therein enumerated require the consent of the Commission on Appointments.
As to the fourth group of officers whom the President can appoint, the intervenor Commission on
Appointments underscores the third sentence in Sec. 16, Article VII of the 1987 Constitution,
which reads:
The Congress may, by law, vest the appointment of other officers lower in rank in
the President alone, in the courts, or in the heads of departments, agencies,
commissions, or boards. [Emphasis supplied].
and argues that, since a law is needed to vest the appointment of lower-ranked officers in the
President alone, this implies that, in the absence of such a law, lower-ranked officers have to be
appointed by the President subject to confirmation by the Commission on Appointments; and, if
this is so, as to lower-ranked officers, it follows that higher-ranked officers should be appointed
by the President, subject also to confirmation by the Commission on Appointments.
The respondents, on the other hand, submit that the third sentence of Sec. 16, Article VII,
abovequoted, merely declares that, as to lower-ranked officers, the Congress may by law vest
their appointment in the President, in the courts, or in the heads of the various departments,
agencies, commissions, or boards in the government. No reason however is submitted for the use
of the word "alone" in said third sentence.
The Court is not impressed by both arguments. It is of the considered opinion, after a careful
study of the deliberations of the 1986 Constitutional Commission, that the use of the word alone"
after the word "President" in said third sentence of Sec. 16, Article VII is, more than anything
else, a slip or lapsus in draftmanship. It will be recalled that, in the 1935 Constitution, the
following provision appears at the end of par. 3, section 1 0, Article VII thereof
...; but the Congress may by law vest the appointment of inferior officers, in the
President alone, in the courts, or in the heads of departments. [Emphasis supplied].
The above provision in the 1935 Constitution appears immediately after the provision which
makes practically all presidential appointments subject to confirmation by the Commission on
Appointments, thus-
3. The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from
the rank of captain or commander, and all other officers of the Government whose
appointments are not herein provided for, and those whom he may be authorized
by law to appoint; ...
In other words, since the 1935 Constitution subjects, as a general rule, presidential appointments
to confirmation by the Commission on Appointments, the same 1935 Constitution saw fit, by
way of an exception to such rule, to provide that Congress may, however, by law vest the
appointment of inferior officers (equivalent to 11 officers lower in rank" referred to in the 1987
Constitution) in the President alone, in the courts, or in the heads of departments,
In the 1987 Constitution, however, as already pointed out, the clear and expressed intent of its
framers was to exclude presidential appointments from confirmation by the Commission on
Appointments, except appointments to offices expressly mentioned in the first sentence of Sec.
16, Article VII. Consequently, there was no reason to use in the third sentence of Sec. 16, Article
VII the word "alone" after the word "President" in providing that Congress may by law vest the
appointment of lower-ranked officers in the President alone, or in the courts, or in the heads of
departments, because the power to appoint officers whom he (the President) may be authorized
by law to appoint is already vested in the President, without need of confirmation by the
Commission on Appointments, in the second sentence of the same Sec. 16, Article VII.
Therefore, the third sentence of Sec. 16, Article VII could have stated merely that, in the case of
lower-ranked officers, the Congress may by law vest their appointment in the President, in the
courts, or in the heads of various departments of the government. In short, the word "alone" in
the third sentence of Sec. 16, Article VII of the 1987 Constitution, as a literal import from the
last part of par. 3, section 10, Article VII of the 1935 Constitution, appears to be redundant in the
light of the second sentence of Sec. 16, Article VII. And, this redundancy cannot prevail over the
clear and positive intent of the framers of the 1987 Constitution that presidential appointments,
except those mentioned in the first sentence of Sec. 16, Article VII, are not subject to
confirmation by the Commission on Appointments.
Coming now to the immediate question before the Court, it is evident that the position of
Commissioner of the Bureau of Customs (a bureau head) is not one of those within the first
group of appointments where the consent of the Commission on Appointments is required. As a
matter of fact, as already pointed out, while the 1935 Constitution includes "heads of bureaus"
among those officers whose appointments need the consent of the Commission on Appointments,
the 1987 Constitution on the other hand, deliberately excluded the position of "heads of bureaus"
from appointments that need the consent (confirmation) of the Commission on Appointments.
Moreover, the President is expressly authorized by law to appoint the Commissioner of the
Bureau of Customs. The original text of Sec. 601 of Republic Act No. 1937, otherwise known as
the Tariff and Customs Code of the Philippines, which was enacted by the Congress of the
Philippines on 22 June 1957, reads as follows:
601. Chief Officials of the Bureau.-The Bureau of Customs shall have one chief
and one assistant chief, to be known respectively as the Commissioner
(hereinafter known as the 'Commissioner') and Assistant Commissioner of
Customs, who shall each receive an annual compensation in accordance with the
rates prescribed by existing laws. The Assistant Commissioner of Customs shall
be appointed by the proper department head.
Sec. 601 of Republic Act No. 1937, was amended on 27 October 1972 by Presidential Decree No.
34, amending the Tariff and Customs Code of the Philippines. Sec. 601, as thus amended, now
reads as follows:
Sec. 601. Chief Officials of the Bureau of Customs.-The Bureau of Customs shall
have one chief and one assistant chief, to be known respectively as the
Commissioner (hereinafter known as Commissioner) and Deputy Commissioner
of Customs, who shall each receive an annual compensation in accordance with
the rates prescribed by existing law. The Commissioner and the Deputy
Commissioner of Customs shall be appointed by the President of the Philippines
(Emphasis supplied.)
Of course, these laws (Rep. Act No. 1937 and PD No. 34) were approved during the effectivity
of the 1935 Constitution, under which the President may nominate and, with the consent of the
Commission on Appointments, appoint the heads of bureaus, like the Commissioner of the
Bureau of Customs.
After the effectivity of the 1987 Constitution, however, Rep. Act No. 1937 and PD No. 34 have
to be read in harmony with Sec. 16, Art. VII, with the result that, while the appointment of the
Commissioner of the Bureau of Customs is one that devolves on the President, as an appointment
he is authorizedby law to make, such appointment, however, no longer needs the confirmation of
the Commission on Appointments.
Consequently, we rule that the President of the Philippines acted within her constitutional
authority and power in appointing respondent Salvador Mison, Commissioner of the Bureau of
Customs, without submitting his nomination to the Commission on Appointments for
confirmation. He is thus entitled to exercise the full authority and functions of the office and to
receive all the salaries and emoluments pertaining thereto.
WHEREFORE, the petition and petition in intervention should be, as they are, hereby
DISMISSED. Without costs.
SO ORDERED.
Separate Opinions
TEEHANKEE, C.J ., concurring:
The Court has deemed it necessary and proper, in consonance with its constitutional duty, to
adjudicate promptly the issue at bar and to rule that the direct appointment of respondent
Salvador Mison as Commissioner of the Bureau of Customs (without need of submitting a prior
nomination to the Commission on Appointments and securing its confirmation) is valid and in
accordance with the President's constitutional authority to so appoint officers of the Government
as defined in Article VII, section 16 of the 1987 Constitution. The paramount public interest and
the exigencies of the public service demand that any doubts over the validity of such
appointments be resolved expeditiously in the test case at bar.
It should be noted that the Court's decision at bar does not mention nor deal with the
Manifestation of December 1, 1987 filed by the intervenor that Senate Bill No. 137 entitled "An
Act Providing For the Confirmation By the Commission on Appointments of All Nominations
and Appointments Made by the President of the Philippines" was passed on 23 October 1987 and
was "set for perusal by the House of Representatives. " This omission has been deliberate. The
Court has resolved the case at bar on the basis of the issues joined by the parties. The
contingency of approval of the bill mentioned by intervenor clearly has no bearing on and cannot
affect retroactively the validity of the direct appointment of respondent Mison and other
appointees similarly situated as in G.R. No. 80071, "Alex G. Almario vs. Hon. Miriam Defensor-
Santiago." The Court does not deal with constitutional questions in the abstract and without the
same being properly raised before it in a justiciable case and after thorough discussion of the
various points of view that would enable it to render judgment after mature deliberation. As
stressed at the hearing of December 8, 1987, any discussion of the reported bill and its validity or
invalidity is premature and irrelevant and outside the scope of the issues resolved in the case at
bar.
MELENCIO-HERRERA, J ., concurring:
I concur with the majority opinion and with the concurring opinion of Justice Sarmiento, and
simply wish to add my own reading of the Constitutional provision involved.
Section 16, Article VII, of the 1987 Constitution 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 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 the departments, agencies,
commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress (Emphasis and 1st three paragraphings,
supplied).
The difference in language used is significant. Under the first sentence it is clear that the
President "nominates" and with the consent of the Commission on Appointments "appoints" the
officials enumerated. The second sentence, however, significantly uses only the term "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. Deliberately eliminated was any
reference to nomination.
Thus, the intent of the framers of the Constitution to exclude the appointees mentioned in the
second sentence from confirmation by the Commission on Appointments is, to my mind, quite
clear. So also is the fact that the term "appoint" used in said sentence was not meant to include
the three distinct acts in the appointing process, namely, nomination, appointment, and
commission. For if that were the intent, the same terminologies in the first sentence could have
been easily employed.
There should be no question either that the participation of the Commission on Appointments in
the appointment process has been deliberately decreased in the 1987 Constitution compared to
that in the 1935 Constitution, which required that all presidential appointments be with the
consent of the Commission on Appointments.
The interpretation given by the majority may, indeed, lead to some incongruous situations as
stressed in the dissenting opinion of Justice Cruz. The remedy therefor addresses itself to the
future. The task of constitutional construction is to ascertain the intent of the framers of the
Constitution and thereafter to assure its realization (J.M. Tuason & Co., Inc. vs. Land Tenure
Administration, G.R. No. 21064, February 18, 1970, 31 SCRA 413). And the primary source
from which to ascertain constitutional intent is the language of the Constitution itself.
SARMIENTO, J ., concurring:
I concur. It is clear from the Constitution itself that not all Presidential appointments are subject
to prior Congressional confirmation, thus:
Sec. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during recess of the
Congress, whether voluntary or compulsory, but such appointment shall be
effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress. 1
By its plain language, the Constitution has intended that only those grouped under the first
sentence are required to undergo a consenting process. This is a significant departure from the
procedure set forth in the 1935 Charter:
(3) The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from
the rank of captain to commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; but the Congress may by law vest the appointment
of inferior officers, in the President alone, in the courts, or in the heads of
departments.
2

under which, as noted by the majority, "almost all presidential appointments required the consent
(confirmation) of the Commission on Appointments.
3
As far as the present Charter is concerned,
no extrinsic aid is necessary to ascertain its meaning. Had its framers intended otherwise, that is
to say, to require all Presidential appointments clearance from the Commission on Appointments,
they could have simply reenacted the Constitution's 1935 counterpart.
4

I agree that the present Constitution classifies four types of appointments that the President may
make: (1) appointments of heads of executive departments, ambassadors, other public ministers
and consuls, or officers of the armed forces from the rank of colonel or naval captain, and those
of other officers whose appointments are vested in him under the Constitution, including the
regular members of the Judicial and Bar Council,
5
the Chairman and Commissioners of the Civil
Service Commission,
6
the Chairman and Commissioners of the Commission on Elections,
7
and
the Chairman and Commissioners of the Commission on Audit;
8
(2) those officers whose
appointments are not otherwise provided for by law; (3) those whom he may be authorized by
law to appoint; and (4) officers lower in rank whose appointments the Congress may vest in the
President alone.
But like Justice Cruz in his dissent, I too am aware that authors of the fundamental law have
written a "rather confused Constitution"
9
with respect, to a large extent, to its other parts, and
with respect, to a certain extent, to the appointing clause itself, in the sense that it leaves us for
instance, with the incongruous situation where a consul's appointment needs confirmation
whereas that of Undersecretary of Foreign
Affairs, his superior, does not. But the Idiosyncracies, as it were, of the Charter is not for us to
judge. That is a question addressed to the electorate, and who, despite those "eccentricities," have
stamped their approval on that Charter. "The Court," avers the majority, "will thus construe the
applicable constitutional provisions, not in accordance with how the executive or the legislative
department may want them construed, but in accordance with what they say and provide." 10
It must be noted that the appointment of public officials is essentially an exercise of executive
power. 11 The fact that the Constitution has provided for a Commission on Appointments does
not minimize the extent of such a power, much less, make it a shared executive-legislative
prerogative. In Concepcion v. Paredes, we stated in no uncertain terms that "[a]ppointment to
office is intrinsically an executive act involving the exercise of discretion." 12 Springer v.
Philippine Islands 13 on the other hand, underscored the fact that while the legislature may
create a public office, it cannot name the official to discharge the functions appurtenant thereto.
And while it may prescribe the qualifications therefor, it cannot circumscribe such qualifications,
which would unduly narrow the President's choice. In that event, it is as if it is the legislature
itself conferring the appointment.
Thus, notwithstanding the existence of a Commission on Appointments, the Chief Executive
retains his supremacy as the appointing authority. In case of doubt, the same should be resolved
in favor of the appointing power.
It is the essence of a republican form of government, like ours, that "[e]ach department of the
government has exclusive cognizance of matters within its jurisdiction." 14 But like all genuine
republican systems, no power is absolutely separate from the other. For republicanism operates
on a process of checks and balances as well, not only to guard against excesses by one branch,
but more importantly, "to secure coordination in the workings of the various departments of the
government." 15 Viewed in that light, the Commission on Appointments acts as a restraint
against abuse of the appointing authority, but not as a means with which to hold the Chief
Executive hostage by a possibly hostile Congress, an unhappy lesson as the majority notes, in
our history under the regime of the 1935 Constitution.
The system of checks and balances is not peculiar to the provision on appointments. The
prohibition, for instance, against the enactment of a bill of attainder operates as a bar against
legislative encroachment upon both judicial and executive domains, since the determination of
guilt and punishment of the guilty address judicial and executive functions, respective y. 16
And then, the cycle of checks and balances pervading the Constitution is a sword that cuts both
ways. In a very real sense, the power of appointment constitutes a check against legislative
authority. In Springer v. Philippine Islands, 17 we are told that "Congress may not control the
law enforcement process by retaining a power to appoint the individual who will execute the
laws." 18 This is so, according to one authority, because "the appointments clause, rather than
'merely dealing with etiquette or protocol,' seeks to preserve an executive check upon legislative
authority in the interest of avoiding an undue concentration of power in Congress. " 19
The President has sworn to "execute [the] laws.
20
For that matter, no other department of the
Government may discharge that function, least of all Congress. Accordingly, a statute conferring
upon a commission the responsibility of administering that very legislation and whose members
have been determined therein, has been held to be repugnant to the Charter.
21
Execution of the
laws, it was held, is the concern of the President, and in going about this business, he acts by
himself or through his men and women, and no other.
The President, on the other hand, cannot remove his own appointees "except for cause provided
by law."
22
Parenthetically, this represents a deviation from the rule prevailing in American
jurisdiction that "the power of removal . . . [is] incident to the power of appointment,
23
although
this has since been tempered in a subsequent case,
24
where it was held that the President may
remove only "purely executive officers,
25
that is, officers holding office at his pleasure. In Ingles
v. Mutuc,
26
this Court held that the President may remove incumbents of offices confidential in
nature, but we likewise made clear that in such a case, the incumbent is not "removed" within the
meaning of civil service laws, but that his term merely expires.
It is to be observed, indeed, that the Commission on Appointments, as constituted under the 1987
Constitution, is itself subject to some check. Under the Charter, "[tlhe Commission shall act on
all appointments submitted to it within thirty session days of the Congress from their submission.
27
Accordingly, the failure of the Commission to either consent or not consent to the
appointments preferred before it within the prescribed period results in a de facto confirmation
thereof
Certainly, our founding fathers have fashioned a Constitution where the boundaries of power are
blurred by the predominance of checks and counterchecks, yet amid such a rubble of competing
powers emerges a structure whose parts are at times jealous of each other, but which are
ultimately necessary in assuring a dynamic, but stable, society. As Mr. Justice Holmes had so
elegantly articulated:
xxx xxx xxx
The great ordinances of the Constitution do not establish and divide fields of
black and white. Even the more specific of them are found to terminate in a
penumbra shading gradually from one extreme to the other. ... When we come to
the fundamental distinctions it is still more obvious that they must be received
with a certain latitude or our government could not go on.
xxx xxx xxx
It does not seem to need argument to show that however we may disguise it by
veiling words we do not and cannot carry out the distinction between legislative
and executive action with mathematical precision and divide the branches into
watertight compartments, were it ever so desirable to do so, which I am far from
believing that it is, or that the Constitution requires.
28

xxx xxx xxx
We are furthermore told:
xxx xxx xxx
... (I)t will be vital not to forget that all of these "checks and counterpoises, which
Newton might readily have recognized as suggestive of the mechanism of the
heavens," (W. Wilson, Constitutional Government in the United States 56 (1908)]
can represent only the scaffolding of a far more subtle "vehicle of life (Id. at 192:
"The Constitution cannot be regarded as a mere legal document, to be read as a
will or a contract would be. It must, of the necessity of the case, be a vehicle of
life.") The great difficulty of any theory less rich, Woodrow Wilson once warned,
"is that government is not a machine, but a living thing. It falls, not under the
theory of the universe, but under the theory of organic life. It is accountable to
Darwin, not to Newton. It is . . . shaped to its functions by the sheer pressure of
life. No living thing can have its organs offset against each other as checks, and
five." (Id. at 56.) Yet because no complex society can have its centers of power
not "offset against each other as checks," and resist tyranny, the Model of
Separated and Divided Powers offers continuing testimony to the undying
dilemmas of progress and justice.
29

xxx xxx xxx
As a closing observation, I wish to clear the impression that the 1973 Constitution deliberately
denied the legislature (the National Assembly under the 1971 draft Constitution) the power to
check executive appointments, and hence, granted the President absolute appointing power.
30
As
a delegate to, and Vice-President of, the ill-fated 1971 Constitutional Convention, and more so as
the presiding officer of most of its plenary session, I am aware that the Convention did not
provide for a commission on appointments on the theory that the Prime Minister, the head of the
Government and the sole appointing power, was himself a member of parliament. For this reason,
there was no necessity for a separate body to scrutinize his appointees. But should such
appointees forfeit the confidence of the assembly, they are, by tradition, required to resign,
unless they should otherwise have been removed by the Prime Minister.
31
In effect, it is
parliament itself that "approves" such appointments. Unfortunately, supervening events
forestalled our parliamentary experiment, and beginning with the 1976 amendments and some
140 or so amendments thereafter, we had reverted to the presidential form,
32
without provisions
for a commission on appointments.
In fine, while Presidential appointments, under the first sentence of Section 16, of Article VII of
the present Constitution, must pass prior Congressional scrutiny, it is a test that operates as a
mere safeguard against abuse with respect to those appointments. It does not accord Congress
any more than the power to check, but not to deny, the Chief Executive's appointing power or to
supplant his appointees with its own. It is but an exception to the rule. In limiting the
Commission's scope of authority, compared to that under the 1935 Constitution, I believe that the
1987 Constitution has simply recognized the reality of that exception.
GUTIERREZ, JR., J ., dissenting:
I join Justice Isagani A. Cruz in his dissent. I agree that the Constitution, as the supreme law of
the land, should never have any of its provisions interpreted in a manner that results in absurd or
irrational consequences.
The Commission on Appointments is an important constitutional body which helps give fuller
expression to the principles inherent in our presidential system of government. Its functions
cannot be made innocuous or unreasonably diminished to the confirmation of a limited number
of appointees. In the same manner that the President shares in the enactment of laws which
govern the nation, the legislature, through its Commission on Appointments, gives assurance that
only those who can pass the scrutiny of both the President and Congress will help run the
country as officers holding high appointive positions. The third sentence of the first paragraph
" ... The Congress may, by law, vest the appointment of other officers lower in rank in the
President alone, in the courts, or in the heads of departments, agencies, commissions, or boards."
specifies only "officers lower in rank" as those who may, by law, be appointed by the
President alone. If as expounded in the majority opinion, only the limited number of officers in
the first sentence of Section 16 require confirmation, the clear intent of the third sentence is lost.
In fact both the second and third sentences become meaningless or superfluous. Superfluity is
not to be read into such an important part of the Constitution.
I agree with the intervenor that all provisions of the Constitution on appointments must be read
together. In providing for the appointment of members of the Supreme Court and judges of lower
courts (Section 9, Article VIII), the Ombudsman and his deputies (Section 9, Article XI), the
Vice President as a member of cabinet (Section 3, Article VII) and, of course, those who by law
the President alone may appoint, the Constitution clearly provides no need for confirmation. This
can only mean that all other appointments need confirmation. Where there is no need for
confirmation or where there is an alternative process to confirmation, the Constitution expressly
so declares. Without such a declaration, there must be confirmation.
The 1973 Constitution dispensed with confirmation by a Commission on Appointments because
the government it set up was supposed to be a parliamentary one. The Prime Minister, as head of
government, was constantly accountable to the legislature. In our presidential system, the
interpretation which Justice Cruz and myself espouse, is more democratic and more in keeping
with the system of government organized under the Constitution.
I, therefore vote to grant the petition.
CRUZ, J ., dissenting:
The view of the respondent, as adopted by the majority opinion, is briefly as follows:
Confirmation is required only for the officers mentioned in the first sentence of Section 16, to
wit: (1) the heads of the executive departments; (2) ambassadors, other public ministers and
consuls; (3) officers of the armed forces from the rank of colonel or naval captain; and (4) other
officers whose appointments are vested in the President in the Constitution. No confirmation is
required under the second sentence for (1) all other officers whose appointments are not
otherwise provided for by law, and (2) those whom the President may be authorized by law to
appoint. Neither is confirmation required by the third sentence for those other officers lower in
rank whose appointment is vested by law in the President alone.
Following this interpretation, the Undersecretary of Foreign Affairs, who is not the head of his
department, does not have to be confirmed by the Commission on Appointments, but the
ordinary consul, who is under his jurisdiction, must be confirmed. The colonel is by any standard
lower in rank than the Chairman of the Commission on Human Rights, which was created by the
Constitution; yet the former is subject to confirmation but the latter is not because he does not
come under the first sentence. The Special Prosecutor, whose appointment is not vested by the
Constitution in the President, is not subject to confirmation under the first sentence, and neither
are the Governor of the Central Bank and the members of the Monetary Board because they fall
under the second sentence as interpreted by the majority opinion. Yet in the case of the multi-
sectoral members of the regional consultative commission, whose appointment is vested by the
Constitution in the President under Article X, Section 18, their confirmation is required although
their rank is decidedly lower.
I do not think these discrepancies were intended by the framers as they would lead to the absurd
consequences we should avoid in interpreting the Constitution.
There is no question that bureau directors are not required to be confirmed under the first
sentence of Section 16, but that is not the provision we ought to interpret. It is the second
sentence we must understand for a proper resolution of the issues now before us. Significantly,
although there was a long discussion of the first sentence in the Constitutional Commission,
there is none cited on the second sentence either in the Solicitor-General's comment or in the
majority opinion. We can therefore only speculate on the correct interpretation of this provision
in the light of the first and third sentences of Section 16 or by reading this section in its totality.
The majority opinion says that the second sentence is the exception to the first sentence and
holds that the two sets of officers specified therein may be appointed by the President without the
concurrence of the Commission on Appointments. This interpretation is pregnant with
mischievous if not also ridiculous results that presumably were not envisioned by the framers.
One may wonder why it was felt necessary to include the second sentence at all, considering the
majority opinion that the enumeration in the first sentence of the officers subject to confirmation
is exclusive on the basis of expressio unius est exclusio alterius. If that be so, the first sentence
would have been sufficient by itself to convey the Idea that all other appointees of the President
would not need confirmation.
One may also ask why, if the officers mentioned in the second sentence do not need confirmation,
it was still felt necessary to provide in the third sentence that the appointment of the other
officers lower in rank will also not need confirmation as long as their appointment is vested by
law in the President alone. The third sentence would appear to be superfluous, too, again in view
of the first sentence.
More to the point, what will follow if Congress does not see fit to vest in the President alone the
appointment of those other officers lower in rank mentioned in the third sentence? Conformably
to the language thereof, these lower officers will need the confirmation of the Commission on
Appointments while, by contrast, the higher officers mentioned in the second sentence will not.
Thus, a regional director in the Department of Labor and the labor arbiters, as officers lower in
rank than the bureau director, will have to be confirmed if the Congress does not vest their
appointment in the President alone under the third sentence. On the other hand, their superior, the
bureau director himself, will not need to be confirmed because, according to the majority opinion,
he falls not under the first sentence but the second. This is carefulness in reverse, like checking
the bridesmaids but forgetting the bride.
It must be borne in mind that one of the purposes of the Constitutional Commission was to
restrict the powers of the Presidency and so prevent the recurrence of another dictatorship.
Among the many measures taken was the restoration of the Commission on Appointments to
check the appointing power which had been much abused by President Marcos. We are now told
that even as this body was revived to limit appointments, the scope of its original authority has
itself been limited in the new Constitution. I have to disagree.
My own reading is that the second sentence is but a continuation of the Idea expressed in the first
sentence and simply mentions the other officers appointed by the President who are also subject
to confirmation. The second sentence is the later expression of the will of the framers and so
must be interpreted as complementing the rule embodied in the first sentence or, if necessary,
reversing the original intention to exempt bureau directors from confirmation. I repeat that there
were no debates on this matter as far as I know, which simply means that my humble conjecture
on the meaning of Section 16 is as arguable, at least, as the suppositions of the majority. We read
and rely on the same records. At any rate, this view is more consistent with the general purpose
of Article VII, which, to repeat, was to reduce the powers of the Presidency.
The respondent cites the following exchange reported in page 520, Volume II, of the Record of
the Constitutional Convention:
Mr. Foz: Madam President, this is the third proposed amendment
on page 7, line 28, 1 propose to put a period (.) after 'captain' and
on line 29, delete 'and all' and substitute it with HE SHALL ALSO
APPOINT ANY.
Mr. Regalado: Madam President, the Committee accepts the
proposed amendment because it makes it clear that those other
officers mentioned therein do not have to be confirmed by the
Commission on Appointments.
However, the records do not show what particular part of Section 16 the committee chairman
was referring to, and a reading in its entirety of this particular debate will suggest that the body
was considering the first sentence of the said section, which I reiterate is not the controversial
provision. In any case, although the excerpt shows that the proposed amendment of
Commissioner Foz was accepted by the committee, it is not reflected, curiously enough, in the
final version of Section 16 as a perusal thereof will readily reveal. Whether it was deleted later in
the session or reworded by the style committee or otherwise replaced for whatever reason will
need another surmise on this rather confused Constitution.
I need only add that the records of the Constitutional Commission are merely extrinsic aids and
are at best persuasive only and not necessarily conclusive. Interestingly, some quarters have
observed that the Congress is not prevented from adding to the list of officers subject to
confirmation by the Commission on Appointments and cite the debates on this matter in support
of this supposition. It is true enough that there was such a consensus, but it is equally true that
this thinking is not at all expressed, or even only implied, in the language of Section 16 of Article
VII. Which should prevail then the provision as worded or the debates?
It is not disputed that the power of appointment is executive in nature, but there is no question
either that it is not absolute or unlimited. The rule re- established by the new Constitution is that
the power requires confirmation by the Commission on Appointments as a restraint on
presidential excesses, in line with the system of checks and balances. I submit it is the exception
to this rule, and not the rule, that should be strictly construed.
In my view, the only officers appointed by the President who are not subject to confirmation by
the Commission on Appointments are (1) the members of the judiciary and the Ombudsman and
his deputies, who are nominated by the Judicial and Bar Council; (2) the Vice-President when he
is appointed to the Cabinet; and (3) "other officers lower in rank," but only when their
appointment is vested by law in the President alone. It is clear that this enumeration does not
include the respondent Commissioner of Customs who, while not covered by the first sentence of
Section 16, comes under the second sentence thereof as I would interpret it and so is also subject
to confirmation.
I vote to grant the petition.
BAUTISTA VS SALONGA
G.R. No. 86439 April 13, 1989
MARY CONCEPCION BAUTISTA, petitioner, vs. SENATOR JOVITO R. SALONGA,
COMMISSION ON APPOINTMENTS COMMITTEE ON JUSTICE, JUDICIAL AND
BAR COUNCIL AND HUMAN RIGHTS AND HESIQUIO R. MALLILLIN, respondents.
PADILLA, J .:
The Court had hoped that its decision in Sarmiento III vs. Mison,
1
would have settled the
question of which appointments by the President, under the 1987 Constitution, are to be made
with and without the review of the Commission on Appointments. The Mison case was the first
major case under the 1987 Constitution and in construing Sec. 16, Art. VII of the 1987
Constitution which 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 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 the departments, agencies, commissions or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress.
this Court, drawing extensively from the proceedings of the 1986 Constitutional Commission
and the country's experience under the 1935 and 1973 Constitutions, held that only those
appointments expressly mentioned in the first sentence of Sec. 16, Art. VII are to be reviewed by
the Commission on Appointments, namely, "the heads of the executive department, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in him in this Constitution." All
other appointments by the President are to be made without the participation of the Commission
on Appointments. Accordingly, in the Mison case, the appointment of therein respondent
Salvador M. Mison as head of the Bureau of Customs, without the confirmation of the
Commission on Appointments, was held valid and in accordance with the Constitution.
The Mison case doctrine did not foreclose contrary opinions. So with the very provisions of Sec.
16, Art. VII as designed by the framers of the 1987 Constitution. But the Constitution, as
construed by this Court in appropriate cases, is the supreme law of the land. And it cannot be
over-stressed that the strength of the Constitution, with all its imperfections, lies in the respect
and obedience accorded to it by the people, especially the officials of government, who are the
subjects of its commands.
Barely a year after Mison, the Court is again confronted with a similar question, this time,
whether or not the appointment by the President of the Chairman of the Commission on Human
Rights (CHR), an "independent office" created by the 1987 Constitution, is to be made with or
without the confirmation of the Commission on Appointments (CA, for brevity). Once more, as
in Mison, the Court will resolve the issue irrespective of the parties involved in the litigation,
mindful that what really matters are the principles that will guide this Administration and others
in the years to come.
Since the position of Chairman of the Commission on Human Rights is not among the positions
mentioned in the first sentence of Sec. 16, Art. VII of the 1987 Constitution, appointments to
which are to be made with the confirmation of the Commission on Appointments, it follows that
the appointment by the President of the Chairman of the (CHR), is to be made without the review
or participation of the Commission on Appointments.
To be more precise, the appointment of the Chairman and Members of the Commission on
Human Rights is not specifically provided for in the Constitution itself, unlike the Chairmen and
Members of the Civil Service Commission, the Commission on Elections and the Commission
on Audit, whose appointments are expressly vested by the Constitution in the President with the
consent of the Commission on Appointments.
2

The President appoints the Chairman and Members of the Commission on Human Rights
pursuant to the second sentence in Section 16, Art. VII, that is, without the confirmation of the
Commission on Appointments because they are among the officers of government "whom he
(the President) may be authorized by law to appoint." And Section 2(c), Executive Order No.
163, 5 May 1987, authorizes the President to appoint the Chairman and Members of the
Commission on Human Rights. It provides:
(c) The Chairman and the Members of the Commission on Human Rights shall be
appointed by the President for a term of seven years without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the
predecessor.
The above conclusions appear to be plainly evident and, therefore, irresistible. However, the
presence in this case of certain elements absent in the Mison case makes necessary a closer
scrutiny. The facts are therefore essential.
On 27 August 1987, the President of the Philippines designated herein petitioner Mary
Concepcion Bautista as "Acting Chairman, Commission on Human Rights." The letter of
designation reads:
27 August 1987
M a d a m:
You are hereby designated ACTING CHAIRMAN, COMMISSION ON
HUMAN RIGHTS, to succeed the late Senator Jose W. Diokno and Justice J. B.
L. Reyes.
Very truly yours,
CORAZON C. AQUINO
HON. MARY CONCEPCION BAUTISTA
3

Realizing perhaps the need for a permanent chairman and members of the Commission on
Human Rights, befitting an independent office, as mandated by the Constitution,
4
the President
of the Philippines on 17 December 1988 extended to petitioner Bautista a permanent
appointment as Chairman of the Commission. The appointment letter is as follows:
17 December 1988
The Honorable
The Chairman
Commission on Human Rights
Pasig, Metro Manila
M a d a m:
Pursuant to the provisions of existing laws, the following are hereby appointed to
the positions indicated opposite their respective names in the Commission on
Human Rights:
MARY CONCEPCION BAUTISTA Chairman
ABELARDO L. APORTADERA, JR Member
SAMUEL SORIANO Member
HESIQUIO R. MALLILLIN Member
NARCISO C. MONTEIRO Member
By virtue hereof, they may qualify and enter upon the performance of the duties
of the office furnishing this Office and the Civil Service Commission with copies
of their oath of office.
Very truly yours,
CORAZON C. AQUINO
5

It is to be noted that by virtue of such appointment, petitioner Bautista was advised by the
President that she could qualify and enter upon the performance of the duties of the office of
Chairman of the Commission on Human Rights, requiring her to furnish the office of the
President and the Civil Service Commission with copies of her oath of office.
On 22 December 1988, before the Chief Justice of this Court, Hon. Marcelo B. Fernan, petitioner
Bautista took her oath of office by virtue of her appointment as Chairman of the Commission on
Human Rights. The full text of the oath of office is as follows:
OATH OF OFFICE
I, MARY CONCEPCION BAUTISTA of 3026 General G. del Pilar Street,
Bangkal, Makati, Metro Manila having been appointed to the position of
CHAIRMAN of the Commission on Human Rights, do solemnly swear that I will
discharge to the best of my ability all the duties and responsibilities of the office
to which I have been appointed; uphold the Constitution of the Republic of the
Philippines, and obey all the laws of the land without mental reservation or
purpose of evasion.
SO HELP ME GOD.
MARY CONCEPCION BAUTISTA
SUBSCRIBED AND SWORN TO before me this 22nd day of December in the
year of Our Lord, 1988 in Manila.
MARCELO B. FERNAN
Chief Justice Supreme Court of the Philippines
6

Immediately, after taking her oath of office as Chairman of the Commission on Human Rights,
petitioner Bautista discharged the functions and duties of the Office of Chairman of the
Commission on Human Rights which, as previously stated, she had originally held merely in an
acting capacity beginning 27 August 1987.
On 9 January 1989, petitioner Bautista received a letter from the Secretary of the Commission on
Appointments requesting her to submit to the Commission certain information and documents as
required by its rules in connection with the confirmation of her appointment as Chairman of the
Commission on Human Rights.
7
On 10 January 1989, the Commission on Appointments'
Secretary again wrote petitioner Bautista requesting her presence at a meeting of the
Commission on Appointments Committee on Justice, Judicial and Bar Council and Human
Rights set for 19 January 1989 at 9 A.M. at the Conference Room, 8th Floor, Kanlaon Tower I,
Roxas Boulevard, Pasay City that would deliberate on her appointment as Chairman of the
Commission on Human Rights.
8

On 13 January 1989, petitioner Bautista wrote to the Chairman of the Commission on
Appointments stating, for the reasons therein given, why she considered the Commission on
Appointments as having no jurisdiction to review her appointment as Chairman of the
Commission on Human Rights. The petitioner's letter to the Commission on Appointments'
Chairman reads:
January 13, 1 989
SENATE PRESIDENT JOVITO R. SALONGA
Chairman
Commission on Appointments
Senate, Manila
S i r:
We acknowledge receipt of the communication from the Commission on
Appointments requesting our appearance on January 19, 1989 for deliberation on
our appointments.
We respectfully submit that the appointments of the Commission commissioners
of the Human Rights Commission are not subject to confirmation by the
Commission on Appointments.
The Constitution, in Article VII Section 16 which expressly vested on the
President the appointing power, has expressly mentioned the government officials
whose appointments are subject to the confirmation of the Commission on
Appointments of Congress. The Commissioners of the Commission on Human
Rights are not included among those.
Where the confirmation of the Commission on Appointments is required, as in the
case of the Constitutional Commissions such as the Commission on Audit, Civil
Service Commission and the Commission on Elections, it was expressly provided
that the nominations will be subject to confirmation of Commission on
Appointments. The exclusion again of the Commission on Human Rights, a
constitutional office, from this enumeration is a clear denial of authority to the
Commission on Appointments to review our appointments to the Commission on
Human Rights.
Furthermore, the Constitution specifically provides that this Commission is an
independent office which:
a. must investigate all forms of human rights violations involving
civil and political rights;
b. shall monitor the government's compliance in all our treaty
obligations on human rights. We submit that, the monitoring of all
agencies of government, includes even Congress itself, in the
performance of its functions which may affect human rights;
c. may call on all agencies of government for the implementation
of its mandate.
The powers of the Commission on Appointments is in fact a derogation of the
Chief Executive's appointing power and therefore the grant of that authority to
review a valid exercise of the executive power can never be presumed. It must be
expressly granted.
The Commission on Appointments has no jurisdiction under the Constitution to
review appointments by the President of Commissioners of the Commission on
Human Rights.
In view of the foregoing considerations, as Chairman of an independent
constitutional office. I cannot submit myself to the Commission on Appointments
for the purpose of confirming or rejecting my appointment.
Very truly yours,
MARY CONCEPCION BAUTISTA, Chairman
9

In respondent Commission's comment (in this case), dated 3 February 1989, there is attached as
Annex 1 a letter of the Commission on Appointments' Secretary to the Executive Secretary, Hon.
Catalino Macaraig, Jr. making reference to the "ad interim appointment which Her Excellency
extended to Atty. Mary Concepcion Bautista on 14 January 1989 as Chairperson of the
Commission on Human Rights"
10
and informing Secretary Macaraig that, as previously
conveyed to him in a letter of 25 January 1989, the Commission on Appointments disapproved
petitioner Bautista's "ad interim appointment' as Chairperson of the Commission on Human
Rights in view of her refusal to submit to the jurisdiction of the Commission on Appointments.
The letter reads:
1 February 1989
HON. CATALINO MACARAIG, JR.
Executive Secretary
Malacanang, Manila
S i r:
This refers to the ad interim appointment which Her Excellency extended to Atty.
Mary Concepcion Bautista on 14 January 1989 as Chairperson of the Commission
on Human Rights.
As we conveyed to you in our letter of 25 January 1989, the Commission on
Appointments, assembled in plenary (session) on the same day, disapproved Atty.
Bautista's ad interim appointment as Chairperson of the Commission on Human
Rights in view of her refusal to submit to the jurisdiction of the Commission on
Appointments.
This is to inform you that the Commission on Appointments, likewise assembled
in plenary (session) earlier today, denied Senator Mamintal A. J. Tamano's
motion for reconsideration of the disapproval of Atty. Bautista's ad interim
appointment as Chairperson of the Commission on Human Rights.
Very truly yours,
V. VICTORINO Secretary
11

On the same date (1 February 1989), the Commission on Appointments' Secretary informed
petitioner Bautista that the motion for reconsideration of the disapproval of her "ad interim
appointment as Chairman of the Commission on Human Rights" was denied by the Commission
on Appointments. The letter reads as follows:
1 February 1989
ATTY. MARY CONCEPCION BAUTISTA
Commission on Human Rights
Integrated Bar of the Philippines
Bldg. Pasig, Metro Manila
Dear Atty. Bautista:
Pursuant to Sec. 6 (a), Chapter II of the Rules of the Commission on
Appointments, the denial by the Commission on Appointments, assembled in
plenary (session) earlier today, of Senator Mamintal A.J. Tamano's motion for
reconsideration of the disapproval of your ad interim appointment as Chairperson
of the Commission on Human Rights is respectfully conveyed.
Thank you for your attention.
Very truly yours,
V. VICTORINO
Secretary
12

In Annex 3 of respondent Commission's same comment, dated 3 February 1989, is a news item
appearing in the 3 February 1989 issue of the "Manila Standard" reporting that the President had
designated PCHR Commissioner Hesiquio R. Mallillin as "Acting Chairman of the Commission"
pending the resolution of Bautista's case which had been elevated to the Supreme Court. The
news item is here quoted in full, thus
Aquino names replacement for MaryCon
President Aquino has named replacement for Presidential Commission on Human
Rights Chairman Mary Concepcion Bautista whose appointment was rejected
anew by the Congressional commission on appointments.
The President designated PCHR commissioner Hesiquio R. Mallillin as acting
chairman of the Commission pending the resolution of Bautista's case which had
been elevated to the Supreme Court.
The President's action followed after Congressional Commission on
Appointments Chairman, Senate President Jovito Salonga declared Bautista can
no longer hold on to her position after her appointment was not confirmed for the
second time.
For all practical purposes, Salonga said Bautista can be accused of usurpation of
authority if she insists to stay on her office.
In effect, the President had asked Bautista to vacate her office and give way to
Mallillin (Mari Villa)
13

On 20 January 1989, or even before the respondent Commission on Appointments had acted on
her "ad interim appointment as Chairman of the Commission on Human Rights" petitioner
Bautista filed with this Court the present petition for certiorari with a prayer for the immediate
issuance of a restraining order, to declare "as unlawful and unconstitutional and without any
legal force and effect any action of the Commission on Appointments as well as of the
Committee on Justice, Judicial and Bar Council and Human Rights, on the lawfully extended
appointment of the petitioner as Chairman of the Commission on Human Rights, on the ground
that they have no lawful and constitutional authority to confirm and to review her appointment."
14

The prayer for temporary restraining order was "to enjoin the respondent Commission on
Appointments not to proceed further with their deliberation and/or proceedings on the
appointment of the petitioner ... nor to enforce, implement or act on any order, resolution, etc.
issued in the course of their deliberations."
15

Respondents were required to file comment within ten (10) days.
16
On 7 February 1989,
petitioner filed an amended petition, with urgent motion for restraining order, impleading
Commissioner Hesiquio R. Mallillin the designated acting chairman as party respondent and
praying for the nullification of his appointment. The succeeding day, a supplemental urgent ex-
parte motion was filed by petitioner seeking to restrain respondent Mallillin from continuing to
exercise the functions of chairman and to refrain from demanding courtesy resignations from
officers or separating or dismissing employees of the Commission.
Acting on petitioner's amended petition and supplemental urgent ex-parte motion, the Court
resolved to issue a temporary restraining order directing respondent Mallillin to cease and desist
from effecting the dismissal, courtesy resignation, i removal and reorganization and other similar
personnel actions.
17
Respondents were likewise required to comment on said amended petition
with allowance for petitioner to file a reply within two (2) days from receipt of a copy thereof.
Respondents Senator Salonga, the Commission on Appointments the Committee on J & BC and
Human Rights filed a comment to the amended petition on 21 February 1989.
18
Petitioner filed
her reply.
19
On 24 February 1989, respondent Mallillin filed a separate comment.
20
The Court
required petitioner to reply to respondent Mallillin's comment .
21
Petitioner filed her reply.
22

In deference to the Commission on Appointments, an instrumentality of a co-ordinate and co-
equal branch of government, the Court did not issue a temporary restraining order directed
against it. However, this does not mean that the issues raised by the petition, as met by the
respondents' comments, will not be resolved in this case. The Court will not shirk from its duty
as the final arbiter of constitutional issues, in the same way that it did not in Mison.
As disclosed by the records, and as previously adverted to, it is clear that petitioner Bautista was
extended by Her Excellency, the President a permanent appointment as Chairman of the
Commission on Human Rights on 17 December 1988. Before this date, she was merely the
"Acting Chairman" of the Commission. Bautista's appointment on 17 December 1988 is an
appointment that was for the President solely to make, i.e., not an appointment to be submitted
for review and confirmation (or rejection) by the Commission on Appointments. This is in
accordance with Sec. 16, Art. VII of the 1987 Constitution and the doctrine in Mison which is
here reiterated.
The threshold question that has really come to the fore is whether the President, subsequent to
her act of 17 December 1988, and after petitioner Bautista had qualified for the office to which
she had been appointed, by taking the oath of office and actually assuming and discharging the
functions and duties thereof, could extend another appointment to the petitioner on 14 January
1989, an "ad interim appointment" as termed by the respondent Commission on Appointments or
any other kind of appointment to the same office of Chairman of the Commission on Human
Rights that called for confirmation by the Commission on Appointments.
The Court, with all due respect to both the Executive and Legislative Departments of
government, and after careful deliberation, is constrained to hold and rule in the negative. When
Her Excellency, the President converted petitioner Bautista's designation as Acting Chairman to
a permanent appointment as Chairman of the Commission on Human Rights on 17 December
1988, significantly she advised Bautista (in the same appointment letter) that, by virtue of such
appointment, she could qualify and enter upon the performance of the duties of the office (of
Chairman of the Commission on Human Rights). All that remained for Bautista to do was to
reject or accept the appointment. Obviously, she accepted the appointment by taking her oath of
office before the Chief Justice of the Supreme Court, Hon. Marcelo B. Fernan and assuming
immediately thereafter the functions and duties of the Chairman of the Commission on Human
Rights. Bautista's appointment therefore on 17 December 1988 as Chairman of the Commission
on Human Rights was a completed act on the part of the President. To paraphrase the great jurist,
Mr. Chief Justice Marshall, in the celebrated case of Marbury vs. Madison.
23

xxx xxx xxx
The answer to this question seems an obvious one. The appointment being the
sole act of the President, must be completely evidenced, when it is shown that he
has done everything to be performed by him.
xxx xxx xxx
Some point of time must be taken when the power of the executive over an officer,
not removable at his will must cease. That point of time must be when the
constitutional power of appointment has been exercised. And this power has been
exercised when the last act, required from the person possessing the power, has
been performed. ....
xxx xxx xxx
But having once made the appointment, his (the President's) power over the office
is terminated in all cases, where by law the officer is not removable by him. The
right to the office is then in the person appointed, and he has the absolute,
unconditional power of accepting or rejecting it.
xxx xxx xxx
THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989
It is respondent Commission's submission that the President, after the appointment of 17
December 1988 extended to petitioner Bautista, decided to extend another appointment (14
January 1989) to petitioner Bautista, this time, submitting such appointment (more accurately,
nomination) to the Commission on Appointments for confirmation. And yet, it seems obvious
enough, both in logic and in fact, that no new or further appointment could be made to a position
already filled by a previously completed appointment which had been accepted by the appointee,
through a valid qualification and assumption of its duties.
Respondent Commission vigorously contends that, granting that petitioner's appointment as
Chairman of the Commission on Human Rights is one that, under Sec. 16, Art. VII of the
Constitution, as interpreted in the Mison case, is solely for the President to make, yet, it is within
the president's prerogative to voluntarily submit such appointment to the Commission on
Appointment for confirmation. The mischief in this contention, as the Court perceives it, lies in
the suggestion that the President (with Congress agreeing) may, from time to time move power
boundaries, in the Constitution differently from where they are placed by the Constitution.
The Court really finds the above contention difficult of acceptance. Constitutional Law, to begin
with, is concerned with power not political convenience, wisdom, exigency, or even necessity.
Neither the Executive nor the Legislative (Commission on Appointments) can create power
where the Constitution confers none. The evident constitutional intent is to strike a careful and
delicate balance, in the matter of appointments to public office, between the President and
Congress (the latter acting through the Commission on Appointments). To tilt one side or the
other of the scale is to disrupt or alter such balance of power. In other words, to the extent that
the Constitution has blocked off certain appointments for the President to make with the
participation of the Commission on Appointments, so also has the Constitution mandated that the
President can confer no power of participation in the Commission on Appointments over other
appointments exclusively reserved for her by the Constitution. The exercise of political options
that finds no support in the Constitution cannot be sustained.
Nor can the Commission on Appointments, by the actual exercise of its constitutionally
delimited power to review presidential appointments, create power to confirm appointments that
the Constitution has reserved to the President alone. Stated differently, when the appointment is
one that the Constitution mandates is for the President to make without the participation of the
Commission on Appointments, the executive's voluntary act of submitting such appointment to
the Commission on Appointments and the latter's act of confirming or rejecting the same, are
done without or in excess of jurisdiction.
EVEN IF THE PRESIDENT MAY VOLUNTARILY SUBMIT TO THE COMMISSION ON
APPOINTMENTS AN APPOINTMENT THAT UNDER THE CONSTITUTION SOLELY
BELONGS TO HER, STILL, THERE WAS NO VACANCY TO WHICH AN APPOINTMENT
COULD BE MADE ON 14 JANUARY 1989
Under this heading, we will assume, ex gratia argumenti, that the Executive may voluntarily
allow the Commission on Appointments to exercise the power of review over an appointment
otherwise solely vested by the Constitution in the President. Yet, as already noted, when the
President appointed petitioner Bautista on 17 December 1988 to the position of Chairman of the
Commission on Human Rights with the advice to her that by virtue of such appointment (not,
until confirmed by the Commission on Appointments), she could qualify and enter upon the
performance of her duties after taking her oath of office, the presidential act of appointment to
the subject position which, under the Constitution, is to be made, in the first place, without the
participation of the Commission on Appointments, was then and there a complete and finished
act, which, upon the acceptance by Bautista, as shown by her taking of the oath of office and
actual assumption of the duties of said office, installed her, indubitably and unequivocally, as the
lawful Chairman of the Commission on Human Rights for a term of seven (7) years. There was
thus no vacancy in the subject office on 14 January 1989 to which an appointment could be
validly made. In fact, there is no vacancy in said office to this day.
Nor can respondents impressively contend that the new appointment or re-appointment on 14
January 1989 was an ad interim appointment, because, under the Constitutional design, ad
interim appointments do not apply to appointments solely for the President to make, i.e., without
the participation of the Commission on Appointments. Ad interim appointments, by their very
nature under the 1987 Constitution, extend only to appointments where the review of the
Commission on Appointments is needed. That is why ad interim appointments are to remain
valid until disapproval by the Commission on Appointments or until the next adjournment of
Congress; but appointments that are for the President solely to make, that is, without the
participation of the Commission on Appointments, can not be ad interim appointments.
EXECUTIVE ORDER NO. 163-A, 30 JUNE 1987, PROVIDING THAT THE TENURE OF
THE CHAIRMAN AND MEMBERS OF THE COMMISSION ON HUMAN RIGHTS SHALL
BE AT THE PLEASURE OF THE PRESIDENT IS UNCONSTITUTIONAL.
Respondent Mallillin contends that with or without confirmation by the Commission on
Appointments, petitioner Bautista, as Chairman of the Commission on Human Rights, can be
removed from said office at anytime, at the pleasure of the President; and that with the
disapproval of Bautista's appointment (nomination) by the Commission on Appointments, there
was greater reason for her removal by the President and her replacement with respondent
Mallillin Thus, according to respondent Mallillin the petition at bar has become moot and
academic.
We do not agree that the petition has become moot and academic. To insist on such a posture is
akin to deluding oneself that day is night just because the drapes are drawn and the lights are on.
For, aside from the substantive questions of constitutional law raised by petitioner, the records
clearly show that petitioner came to this Court in timely manner and has not shown any
indication of abandoning her petition.
Reliance is placed by respondent Mallillin on Executive Order No. 163-A, 30 June 1987, full text
of which is as follows:
WHEREAS, the Constitution does not prescribe the term of office of the
Chairman and Members of the Commission on Human Rights unlike those of
other Constitutional Commissions;
NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines,
do hereby order:
SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby
amended to read as follows:
The Chairman and Members of the Commission on Human Rights shall be
appointed by the President. Their tenure in office shall be at the pleasure of the
President.
SEC. 2. This Executive Order shall take effect immediately. DONE in the City of
Manila, this 30th day of June, in the year of Our Lord, nineteen hundred and
eighty-seven.
(Sgd.) CORAZON C. AQUINO
President of the Philippines
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary
24

Previous to Executive Order No. 163-A, or on 5 May 1987, Executive Order No. 163
25
was
issued by the President, Sec. 2(c) of which provides:
Sec. 2(c). The Chairman and the Members of the Commission on Human Rights
shall be appointed by the President for a term of seven years without
reappointment. Appointments to any vacancy shall be only for the unexpired term
of the predecessor.
It is to be noted that, while the earlier executive order (No. 163) speaks of a term of office of the
Chairman and Members of the Commission on Human Rights which is seven (7) years
without reappointment the later executive order (163-A) speaks of the tenure in office of the
Chairman and Members of the Commission on Human Rights, which is "at the pleasure of the
President."
Tenure in office should not be confused with term of office. As Mr. Justice (later, Chief Justice)
Concepcion in his concurring opinion in Alba vs. Evangelista,
26
stated:
The distinction between "term" and "tenure" is important, for, pursuant to the
Constitution, "no officer or employee in the Civil Service may be removed or
suspended except for cause, as provided by law" (Art. XII, section 4), and this
fundamental principle would be defeated if Congress could legally make the
tenure of some officials dependent upon the pleasure of the President, by clothing
the latter with blanket authority to replace a public officer before the expiration of
his term.
27

When Executive Order No. 163 was issued, the evident purpose was to comply with the
constitutional provision that "the term of office and other qualifications and disabilities of the
Members of the Commission (on Human Rights) shall be provided by law" (Sec. 17(2), Art. XIII,
1987 Constitution).
As the term of office of the Chairman (and Members) of the Commission on Human Rights, is
seven (7) years, without reappointment, as provided by Executive Order No. 163, and consistent
with the constitutional design to give the Commission the needed independence to perform and
accomplish its functions and duties, the tenure in office of said Chairman (and Members) cannot
be later made dependent on the pleasure of the President.
Nor can respondent Mallillin find support in the majority opinion in the Alba case, supra,
because the power of the President, sustained therein, to replace a previously appointed vice-
mayor of Roxas City given the express provision in Sec. 8, Rep. Act No. 603 (creating the City
of Roxas) stating that the vice-mayor shall serve at the pleasure of the President, can find no
application to the Chairman of an INDEPENDENT OFFICE, created not by statute but by the
Constitution itself. Besides, unlike in the Alba case, here the Constitution has decreed that the
Chairman and Members of the Commission on Human Rights shall have a "term of office."
Indeed, the Court finds it extremely difficult to conceptualize how an office conceived and
created by the Constitution to be independent as the Commission on Human Rights-and vested
with the delicate and vital functions of investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as remedial measures therefor, can truly
function with independence and effectiveness, when the tenure in office of its Chairman and
Members is made dependent on the pleasure of the President. Executive Order No. 163-A, being
antithetical to the constitutional mandate of independence for the Commission on Human Rights
has to be declared unconstitutional.
The Court is not alone in viewing Executive Order No. 163-A as containing the seeds of its
constitutional destruction. The proceedings in the 1986 Constitutional Commission clearly point
to its being plainly at war with the constitutional intent of independence for the Commission.
Thus
MR. GARCIA (sponsor). Precisely, one of the reasons why it is important for this
body to be constitutionalized is the fact that regardless of who is the President or
who holds the executive power, the human rights issue is of such importance that
it should be safeguarded and it should be independent of political parties or
powers that are actually holding the reins of government. Our experience during
the martial law period made us realize how precious those rights are and,
therefore, these must be safeguarded at all times.
xxx xxx xxx
MR. GARCIA. I would like to state this fact: Precisely we do not want the term or
the power of the Commission on Human Rights to be coterminous with the
president, because the President's power is such that if he appoints a certain
commissioner and that commissioner is subject to the President, therefore, any
human rights violations committed under the person's administration will be
subject to presidential pressure. That is what we would like to avoid to make
the protection of human rights go beyond the fortunes of different political parties
or administrations in power.
28

xxx xxx xxx
MR. SARMIENTO (sponsor). Yes, Madam President. I conferred with the
honorable Chief Justice Concepcion and retired Justice J.B.L. Reyes and they
believe that there should be an independent Commission on Human Rights free
from executive influence because many of the irregularities on human rights
violations are committed by members of the armed forces and members of the
executive branch of the government. So as to insulate this body from political
interference, there is a need to constitutionalize it.
29

xxx xxx xxx
MR. SARMIENTO: On the inquiry on whether there is a need for this to be
constitutionalized, I would refer to a previous inquiry that there is still a need for
making this a constitutional body free or insulated from interference. I conferred
with former Chief Justice Concepcion and the acting chairman of the Presidential
Committee on Human Rights, retired Justice J.B.L. Reyes, and they are one in
saying that this body should be constitutionalized so that it will be free from
executive control or interferences, since many of the abuses are committed by the
members of the military or the armed forces.
30

xxx xxx xxx
MR. SARMIENTO. Yes, Congress can create this body, but as I have said, if we
leave it to Congress, this commission will be within the reach of politicians and of
public officers and that to me is dangerous. We should insulate this body from
political control and political interference because of the nature of its functions to
investigate all forms of human rights violations which are principally committed
by members of the military, by the Armed Forces of the Philippines.
31

xxx xxx xxx
MR. GARCIA. The critical factor here is political control, and normally, when a
body is appointed by Presidents who may change, the commission must remain
above these changes in political control. Secondly, the other important factor to
consider are the armed forces, the police forces which have tremendous power at
their command and, therefore, we would need a commission composed of men
who also are beyond the reach of these forces and the changes in political
administration.
32

xxx xxx xxx
MR MONSOD. Yes, It is the committee's position that this proposed special body,
in order to function effectively, must be invested with an independence that is
necessary not only for its credibility but also for the effectiveness of its work.
However, we want to make a distinction in this Constitution. May be what
happened was that it was referred to the wrong committee. In the opinion of the
committee, this need not be a commission that is similar to the three constitutional
commissions like the COA, the COMELEC, and the Civil Service. It need not be
in that article.
33

xxx xxx xxx
MR. COLAYCO. The Commissioners earlier objection was that the Office of the
President is not involved in the project. How sure are we that the next President of
the Philippines will be somebody we can trust? Remember, even now there is a
growing concern about some of the bodies, agencies and commission created by
President Aquino.
34

xxx xxx xxx
.... Leaving to Congress the creation of the Commission on Human Rights is
giving less importance to a truly fundamental need to set up a body that will
effectively enforce the rules designed to uphold human rights.
35

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE
To hold, as the Court holds, that petitioner Bautista is the lawful incumbent of the office of
Chairman of the Commission on Human Rights by virtue of her appointment, as such, by the
President on 17 December 1988, and her acceptance thereof, is not to say that she cannot be
removed from office before the expiration of her seven (7) year term. She certainly can be
removed but her removal must be for cause and with her right to due process properly
safeguarded. In the case of NASECO vs. NLRC,
36
this Court held that before a rank-and-file
employee of the NASECO, a government-owned corporation, could be dismissed, she was
entitled to a hearing and due process. How much more, in the case of the Chairman of a
constitutionally mandated INDEPENDENT OFFICE, like the Commission on Human Rights.
If there are charges against Bautista for misfeasance or malfeasance in office, charges may be
filed against her with the Ombudsman. If he finds a prima facie case against her, the
corresponding information or informations can be filed with the Sandiganbayan which may in
turn order her suspension from office while the case or cases against her are pending before said
court.
37
This is due process in action. This is the way of a government of laws and not of men.
A FINAL WORD
It is to the credit of the President that, in deference to the rule of law, after petitioner Bautista had
elevated her case to this Tribunal, Her Excellency merely designated an Acting Chairman for the
Commission on Human Rights (pending decision in this case) instead of appointing another
permanent Chairman. The latter course would have added only more legal difficulties to an
already difficult situation.
WHEREFORE, the petition is GRANTED. Petitioner Bautista is declared to be, as she is, the
duly appointed Chairman of the Commission on Human Rights and the lawful incumbent thereof,
entitled to all the benefits, privileges and emoluments of said office. The temporary restraining
order heretofore issued by the Court against respondent Mallillin enjoining him from dismissing
or terminating personnel of the Commission on Human Rights is made permanent.
SO ORDERED.
Separate Opinions
GUTIERREZ, J R., J.: Dissenting Opinion
With all due respect for the contrary view of the majority in the Court, I maintain that it is asking
too much to expect a constitutional ruling which results in absurd or irrational consequences to
ever become settled.
The President and Congress, the appointees concerned, and the general public may in time accept
the Sarmiento III v. Mison ruling because this Court has the final word on what constitutional
provisions are supposed to mean but the incongruity will remain sticking out like a sore thumb.
Serious students of the Constitution will continue to be disturbed until the meaning of the
consent power of the Commission on Appointments is straightened out either through a re-
examination of this Court's decision or an amendment to the Constitution.
Section 16, Article VII of the Constitution consists of only three sentences. The officers specified
in the first sentence clearly require confirmation by the Commission on Appointments. The
officers mentioned in the third sentence just as clearly do not require confirmation. The problem
area lies with those in the second sentence.
I submit that we should re-examine the three groups of presidential appointees under the three
sentences of Section 16.
The first group are the heads of executive departments, ambassadors, other public ministers and
consuls, officers of the armed forces from colonel or naval captain, and other officers whose
appointments are vested in the President by the Constitution. The first sentence of Section 16
state they must be confirmed by the Commission on Appointments.
The third group are officers lower in rank whose appointments Congress has by law vested in the
President alone. They need no confirmation.
The second group of presidential appointees are "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." To which group do they belong?-Group I requiring confirmation or Group 3
where confirmation is not needed?
No matter how often and how long I read the second sentence of Section 16, I simply cannot
associate the officers mentioned therein as forming part of those referred to in the third sentence.
Why am I constrained to hold this view?
(1) If the officers in the first group are the only appointees who need confirmation, there would
be no need for the second and third sentences of Section 16. They become superfluous. Any one
not falling under an express listing would need no confirmation. I think the Court is wrong in
treating two carefully crafted and significant provisions of the fundamental law as superfluities.
Except for the most compelling reasons, which do not exist here, no constitutional provision
should be considered a useless surplusage.
(2) As strongly stressed by Justice Isagani Cruz here and in our earlier dissent, the majority view
results in the absurd consequence where one of several hundred colonels and naval captains must
be confirmed but such important officers as the Governor of the Central Bank with broad powers
over the nation's economy and future stability or the Chairman of the Commission on Human
Rights whose office calls for no less than a constitutional mandate do not have to be scrutinized
by the Commission on Appointments. Why should a minor consul to Timbuktu, Mali need the
thorough scrutiny during the confirmation process while the Undersecretary of Foreign Affairs
who sends him there and who exercises control over his acts can be appointed by the President
alone? Why should we interpret Section 16 in such a strange and irrational manner when no
strained construction is needed to give it a logical and more traditional and understandable
meaning.?
(3) The second sentence of Section 16 starts with, "He shall also appoint ...." Whenever we see
the word "also" in a sentence, we associate it with preceding sentences, never with the different
sentence that follows. On the other hand, the third sentence specifies "other officers lower in
rank' who are appointed pursuant to law by the President "alone." This can only mean that the
higher ranking officers in the second sentence must also be appointed with the concurrence of
the Commission on Appointments. When the Constitution requires Congress to specify who may
be appointed by the President alone, we should not add other and higher ranking officers as also
appointed by her alone. The strained interpretation by the Court's majority makes the word
"alone" meaningless if the officers to whom "alone" is not appended are also included in the
third group.
(4) The third sentence of Section 16 requires a positive act of Congress which vests an
appointment in the President alone before such an appointment is freed from the scrutiny of the
Commission on Appointments. By express constitutional mandate, it is Congress which
determines who do not need confirmation. Under the majority ruling of the Court, if Congress
creates an important office and requires the consent of the Commission before a presidential
appointment to that office is perfected, such a requirement would be unconstitutional. I believe
that the Constitution was never intended to so restrict the lawmaking power. The Court has no
jurisdiction to limit the plenary lawmaking power of the people's elected representatives through
an implied and, I must again add, a strained reading of the plain text of Section 16. Any
restriction of legislative power must be categorical, express, and specific-never implied or forced.
(5) The Constitution specifies clearly the presidential appointees who do not need confirmation
by the Commission. The reason for non-confirmation is obvious. The members of the Supreme
Court and all lower courts and the Ombudsman and his deputies are not confirmed because the
Judicial and Bar Council screens nominees before their names are forwarded to the President.
The Vice-President as a cabinet member needs no confirmation because the Constitution says so.
He or she is chosen by the nation's entire electorate and is only a breath away from the
Presidency. Those falling under the third sentence of Section 16, Article VII do not have to be
confirmed because the Constitution gives Congress the authority to free lower ranking officials
whose positions are created by law from that requirement. I believe that we in the Court have no
power to add by implication to the list of presidential appointees whom the Constitution in clear
and categorical words declares as not needing confirmation.
(6) As stated in my dissent in Sarmiento III v. Mison, the Commission on Appointments is an
important constitutional body which helps give fuller expression to the democratic principles
inherent in our presidential form of government.
There are those who would render innocuous the Commission's power or perhaps even move for
its abolition as a protest against what they believe is too much horsetrading or sectarian politics
in the exercise of its functions. Since the President is a genuinely liked and popular leader,
personally untouched by scandal, who appears to be motivated only by the sincerest of intentions,
these people would want the Commission to routinely rubberstamp those whom she appoints to
high office.
Unfortunately, we cannot have one reading of Section 16 for popular Presidents and another
interpretation for more mediocre disliked, and even abusive or dictatorial ones. Precisely,
Section 16 was intended to check abuse or ill-considered appointments by a President who
belongs to the latter class.
It is not the judiciary and certainly not the appointed bureaucracy but Congress which truly
represents the people. We should not expect Congress to act only as the selfless Idealists, the
well-meaning technocrats, the philosophers, and the coffee-shop pundits would have it move.
The masses of our people are poor and underprivileged, without the resources or the time to get
publicly involved in the intricate workings of Government, and often ill-informed or functionally
illiterate. These masses together with the propertied gentry and the elite class can express their
divergent views only through their Senators and Congressmen. Even the buffoons and retardates
deserve to have their interests considered and aired by the people's representatives. In the
democracy we have and which we try to improve upon, the Commission on Appointments
cannot be expected to function like a mindless machine without any debates or even
imperfections. The discussions and wranglings, the delays and posturing are part of the
democratic process. They should never be used as arguments to restrict legislative power where
the Constitution does not expressly provide for such a limitation.
The Commission on Human Rights is a very important office. Our country is beset by
widespread insurgency, marked inequity in the ownership and enjoyment of wealth and political
power, and dangerous conflicts arising from Ideological, ethnic and religious differences. The
tendency to use force and violent means against those who hold opposite views appears
irresistible to the holders of both governmental and rebel firepower.
The President is doubly careful in the choice of the Chairman and Members of the Commission
on Human Rights. Fully aware of the ruling in Sarmiento III v. Mison, she wants the
appointments to be a joint responsibility of the Presidency and Congress, through the
Commission on Appointments. She wants a more thorough screening process for these sensitive
positions. She wants only the best to survive the process.
Why should we tell both the President and Congress that they are wrong.?
Again, I fail to see why the captain of a naval boat ordered to fire broadsides against rebel
concentrations should receive greater scrutiny in his appointment than the Chairman of the
Human Rights Commission who has infinitely more power and opportunity to bring the rebellion
to a just and satisfactory end.
But even if I were to agree with the Sarmiento III v. Mison ruling, I would still include the
Chairman of the Human Rights Commission as one of the "other officers whose appointments
are vested in him in this Constitution" under the first sentence of Section 16, Article VII.
Certainly, the chairman cannot be appointed by Congress or the Supreme Court. Neither should
we read Article XIII of the Constitution as classifying the chairman among the lower ranking
officers who by law may be appointed by the head of an executive department, agency,
commission, or board. The Constitution created the independent office. The President was
intended to appoint its chairman.
I, therefore, regretfully reiterate my dissent from the Sarmiento III v. Mison ruling and join in the
call for a re-examination of its doctrine.
CRUZ, J ., dissenting:
This is as good a time as any to re-examine our ruling in Sarmiento v. Mison, which was adopted
by the Court more than a year ago over two dissents. The President of the Philippines has taken a
second look at it, and so too has the Commission on Appointments representing both Houses of
the Congress of the Philippines. It appears that they are not exactly certain now that the decision
in that case was correct after all. I believe it will not be amiss for us too, in a spirit of humility, to
read the Constitution again on the possibility that we may have misread it before.
The ponencia assumes that we were right the first time and that the Mison case is settled there
is no need to re-examine it. It therefore approaches the problem at hand from another perspective
and would sustain the petitioner on an additional ground.
The theory is that the petitioner's first appointment on 17 December 1988 was valid even if not
confirmed, conformably to Mison, and could not be replaced with the second appointment on 14
January 1989 because there was no vacancy to fill. By this reasoning, the opinion would
definitely avoid the question squarely presented to the Court, viz., whether or not the Chairman
of the Commission on Human Rights is subject to confirmation as required now by both the
President of the Philippines and the Commission on Appointments. In effect, we are asked to
reconsider the Mison ruling in the light of this supervening significant albeit decidedly not
controlling circumstance.
The majority makes its ratiocination sound so simple, but I find I am unable to agree. I think we
must address the legal question frontally instead of falling back on a legal sleight-of hand of
now-you-see-it-now-you-don't.
As one who never agreed with the bison ruling in the first place, I suspect that the seeming
diffidence in applying it categorically to the case at bar is due to a degree of uneasiness over its
correctness. I think this is the reason another justification had to be offered to bolster Mison.
In my dissent in Alison, I specifically mentioned the Chairman of the Commission on Human
Rights as among the important officers who would not have to be confirmed if the majority view
were to be followed. By contrast, and inexplicably, the colonel in the armed forces would need
confirmation although he is not a constitutional officer with the serious responsibilities of the
former. Also not to be confirmed are the Governor of the Central Bank unlike the relatively
minor multisectoral representative of the regional consultative commission, and the
Undersecretary of Foreign Affairs although the consul, who is his subordinate, would need
confirmation. When I pointed to these incongruous situations, I was told it was not our place to
question the wisdom of the Constitution. What I was questioning was not the wisdom of the
Constitution but the wisdom of our interpretation which I said would lead to absurd
consequences. But only Justice Gutierrez agreed with me.
Now the chickens have come home to roost. The petitioner asks us to unequivocally apply our
own ruling in Alison, but we are equivocating. The ponencia would sustain the petitioner by a
circumlocution, such as it is, as if it does not think Mison, will suffice for its conclusion.
As I see it, the submission of the petitioner's appointment to the Commission on Appointments is
a clear indication that the President of the Philippines no longer agrees with the Mison, ruling, at
least insofar as it applies to the present case. Signifi cantly the Commission on Appointments,
which was also aware of Mison, has as clearly rejected it by acting on the appointment. These
meaningful developments must give us pause. We may have committed an error in Mison, which
is bad enough, and may be persisting in it now, which is worse.
Coming now to the theory of the majority, I regret I am also unable to accept it. Consistent with
my view in Mison, I submit that what President Aquino extended to the petitioner on 17
December 1988 was an ad interim appointment that although immediately effective upon
acceptance was still subject to confirmation. I cannot agree that when the President said the
petitioner could and enter into the performance of her duties, "all that remained for Bautista to do
was to reject or accept the appointment." In fact, on the very day it was extended, the ad interim
appointment was submitted by the President of the Philippines to the Commission on
Appointments "for confirmation."
The ponencia says that the appointment did not need any confirmation, being the sole act of the
President under the Mison ruling. That would have settled the question quite conclusively, but
the opinion goes on to argue another justification that I for one find unnecessary, not to say
untenable. I sense here a palpable effort to bolster Mison because of the apprehension that it is
falling apart.
Of course, there was no vacancy when the nomination was made on 14 January 1989. There is
no question that the petitioner was still validly holding the office by virtue of her ad interim
appointment thereto on 17 December 1988. The nomination made later was unnecessary because
the ad interim appointment was still effective. When the Commission on Appointments sent the
petitioner the letters dated 9 January 1989 and 10 January 1989 requiring her to submit certain
data and inviting her to appear before it, it was acting not on the nomination but on the ad
interim appointment. What was disapproved was the ad interim appointment, not the nomination.
The nomination of 14 January 1989 is not in issue in this case. It is entirely immaterial. At best,
it is important only as an affirmation of the President's acknowledgment that the Chairman of the
Commission on Human Rights must be confirmed under Article VII, Section 16 of the
Constitution.
It does not follow, of course, that simply because the President of the Philippines has changed
her mind, and with the expressed support of the Commission on Appointments, we should
docilely submit and reverse Mison. That is not how democracy works. The Court is independent.
I do suggest, however, that the majority could have erred in that case and that the least we can do
now is to take a more careful look at the decision. Let us check our bearings to make sure we
have not gone astray. That is all I ask
I repeat my view that the Chairman of the Commission on Human Rights is subject to
confirmation by the Commission on Appointments, for the reasons stated in my dissent in Mison
Accordingly, I vote to DENY the petition.
GRIO-AQUINO, J.: dissenting:
I believe that the appointments of the chairman and the members of the Commission on Human
Rights by the President require review and confirmation by the Commission on Appointments in
view of the following provision of Section 16, Article VII of the 1987 Constitution:
SEC. 16. The President shall nominate and, with the consent of the Commission
on Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in
him in this Constitution....
In my view, the "other officers" whose appointments are vested in the President in the
Constitution are the constitutional officers, meaning those who hold offices created under the
Constitution, and whose appointments are not otherwise provided for in the Charter. Those
constitutional officers are the chairmen and members of the Constitutional Commissions, namely:
the Civil Service Commission (Art. IX-B), the Commission on Elections (Art. IX-C), the
Commission on Audit Art. IX-D), and the Commission on Human Rights (Sec. 17, XIII). These
constitutional commissions are, without excaption, declared to be "independent," but while in the
case of the Civil Service Commission, the Commission on Elections and the Commission on
Audit, the 1987 Constitution expressly provides that "the Chairman and the Commissioners shall
be appointed by the President with the consent of the Commission on Appointments" (Sec. 1[2],
Art. IX-B; Sec. 1[2], Art. IX - C and Sec. 1[2], Art. IX-D), no such clause is found in Section 17,
Article VIII creating the Commission on Human Rights. Its absence, however, does not detract
from, or diminish, the President's power to appoint the Chairman and Commissioners of the said
Commission. The source of that power is the first sentence of Section 16, Article VII of the
Constitution for:
(1) the Commission on Human Rights is an office created by the Constitution, and
(2) the appointment of the Chairman and Commissioners thereof is vested in the President by the
Constitution.
Therefore, the said appointments shall be made by the President with the consent of the
Commission on Appointments, as provided in Section 16, Article VII of the Constitution.
It is not quite correct to argue, as the petitioner does, that the power of the Commission on
Appointments to review and confirm appointments made by the President is a "derogation of the
Chief Executive's appointing power." That power is given to the Commission on Appointments
as part of the system of checks and balances in the democratic form of government provided for
in our Constitution. As stated by a respected constitutional authority, former U.P. Law Dean and
President Vicente G. Sinco:
The function of confirming appointments is part of the power of appointment
itself. It is, therefore, executive rather than legislative in nature. In giving this
power to an organ of the legislative department, the Constitution merely provides
a detail in the scheme of checks and balances between the executive and
legislative organs of the government. (Phil. Political Law by Sinco, 11th ed., p.
266).
WHEREFORE, I vote to dismiss the petition.
QUINTOS-DELES VS CCC
G.R. No. 83216 September 4, 1989
TERESITA QUINTOS-DELES, GLORIA T. ARAGON (M.D.), LOURDES V. MASTURA,
TRINIDAD A. GOMEZ, ADUL DE LEON, JOSEFINA AZARCON-DELA CRUZ,
TRINIDAD M. DOMINGO, MARIA MAYET T. LEDANO, LOLIT ANTONIO, ET AL.,
petitioners, vs. THE COMMISSION ON CONSTITUTIONAL COMMISSIONS, AND
OFFICES (C.A.), COMMISSION ON APPOINTMENTS, THE SECRETARY GENERAL
OF THE HOUSE OF REPRESENTATIVES, THE CHIEF ACCOUNTANT OF THE
HOUSE OF REPRESENTATIVES, ET AL., respondents.
BIDIN, J .:
This is a special civil action for prohibition and mandamus with injunction seeking to compel
respondent Commission on Appointments to allow petitioner Teresita Quintos-Deles to perform
and discharge her duties as a member of the House of Representatives representing the Women's
Sector and to restrain respondents from subjecting petitioner's appointment to the confirmation
process.
The antecedent facts which gave rise to this petition are as follows:
On April 6, 1988, petitioner and three others were appointed Sectoral Representatives by the
President pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7 of the
Constitution. Executive Secretary Catalino Macaraig, Jr. transmitted by letter, also dated April
6,1988 (Annex L) the appointment of the said sectoral representatives to Speaker Ramon Mitra,
Jr. as follows:
April 6, 1988
Hon. Ramon V. Mitra, Jr.
Speaker, House of Representatives
Quezon City
S i r:
Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of the Constitution,
the President has appointed the following persons to the seats reserved for sectoral
representatives in paragraph (1), Section 5 of Article VI of the Constitution:
1. Teresita Quintos-Deles -Women
2. Al Ignatius G. Lopez Youth
3. Bartolome Arteche -Peasant
4. Rey Magno Teves -Urban Poor
Copies of their appointments are enclosed.
With best wishes.
Very truly yours,
(SGD.) CATALINO MACARAIG JR
Executive Secretary
On April 18, 1988, the above-mentioned sectoral representatives were scheduled to take their
oaths before Speaker Ramon V. Mitra, Jr. at the Session Hall of Congress after the Order of
Business. However, petitioner and the three other sectoral representatives- appointees were not
able to take their oaths and discharge their duties as members of Congress due to the opposition
of some congressmen-members of the Commission on Appointments, who insisted that sectoral
representatives must first be confirmed by the respondent Commission before they could take
their oaths and/or assume office as members of the House of Representatives. This opposition
compelled Speaker Ramon V. Mitra, Jr. to suspend the oath-taking of the four sectoral
representatives.
In view of this development, Executive Secretary Catalino Macaraig, Jr. transmitted on April
25,1988, a letter dated April 11, 1988 of the President addressed to the Commission on
Appointments submitting for confirmation the appointments of the four sectoral representatives
as follows:
l1 April 1988
The Honorable
Jovito R. Salonga
The Senate President and
The Members of the Commission
on Appointments
Congress of the Philippines
M a n i l a
Gentlemen:
Pursuant to Article VII, Section 16, paragraph 2, and Article XVIII, Section 7, of the
Constitution, I hereby submit, for confirmation, the appointments of the following persons as
Members of the House of Representatives representing the sectors indicated opposite their
respective names:
TERESITA QUINTOS-DELES Women
AL IGNATIUS G. LOPEZ Youth
BARTOLOME ARTECHE Peasant
REY MAGNO TEVES Urban Poor
An early confirmation of their appointments will be appreciated.
Very truly yours,
(Sgd) Corazon C. Aquino
Meanwhile, petitioner in a letter dated April 22, 1988 addressed to Speaker Ramon V. Mitra, Jr.
(Annex V) appealed to the House of Representatives alleging, among others, that since 41 no
attempt was made to subject the sectoral representatives* already sitting to the confirmation
process, there is no necessity for such confirmation and subjection thereto of the present batch
would certainly be discriminatory."
In reply, Speaker Mitra in a letter dated May 2, 1988 (Annex BB) informed petitioner that since
"President Corazon C. Aquino has submitted your appointment to the Commission on
Appointments for confirmation in a letter dated April 11, 1988, . . . the Commission on
Appointments now has sole jurisdiction over the matter."
On May 10, 1988, petitioner Deles received an invitation dated May 6, 1988 to attend a
Commission on Appointments Committee Meeting scheduled for May 12, 1988 for the
deliberation of her appointment as sectoral representative for women (Annex DD). Petitioner
sent a reply dated May 11, 1988 explaining her position and questioning the jurisdiction of the
Commission on Appointments over the appointment of sectoral representatives (Annex EE).
In the May 12,1988 meeting of the Committee of the Constitutional Commissions and Offices of
the Commission on Appointments, chaired by Sen. Edgardo J. Angara, the Committee ruled
against the position of petitioner Deles.
Hence, this petition for prohibition and mandamus praying that respondent Commission on
Appointments be enjoined from subjecting to confirmation process the petitioner's appointment
as sectoral representative for the women's sector and as member of Congress.
Petitions in intervention were likewise filed by Estefania Aldaba Lim, et al. (Rollo, p. 147); Ma.
Iris Melizza, et al. (Rollo, p. 172); Margarita Gomez, et al. (Rollo, p. 186); Hernani Panganiban,
et al. (Rollo, p. 208); Presentacion Castro, et al. (Rollo, p. 215); Sr. Teresa Dagdag, et al. (Rollo,
p. 251); and Civil Liberties Union (Rollo, p. 274).
Petitioner Teresita Quintos-Deles contends that her appointment as Sectoral Representative for
Women by the President pursuant to Section 7, Article XVIII of the Constitution, does not
require confirmation by the Commission on Appointments to qualify her to take her seat in the
House of Representatives.
The opposite view is taken by the Solicitor General in his Statement of Position (In lieu of
Comment), dated July 15,1988 (Rollo, p. 206) in this wise: "In view of the President's
submission d the four sectoral representatives, the petitioner included, to the Commission on
Appointments by letter dated April 11, 1988, then confirmation by the Commission on
Appointments is required."
On August 15, 1988, respondent Commission on Appointments, in addition to adopting the
Statement of Position (in lieu of Comment) submitted by the Solicitor General, likewise
submitted its own Statement of Position (In lieu of Comment) and further manifested that (1) the
appointment of petitioner Deles was not acted upon by the Commission on Appointments when
Congress went into recess as required by the Constitution; (2) the case of petitioner Deles for
appointment as sectoral representative to the House of Representatives has become moot and
academic not having been finally acted upon at the close of the session of Congress pursuant to
See. 23 of the Rules of the Commission (Rollo, pp. 233-234) which reads as follows:
Section 23. Suspension of Consideration of Nomination or Appointments to be
Returned to the President.- Nominations or appointments submitted by the
President of the Philippines which are not finally acted upon at the close of the
session of Congress shall be returned to the President, and unless resubmitted,
shall not again be considered by the Commission.
On January 31, 1989, the Court after noting the reply filed by the petitioner and the rejoinder
filed by respondents, resolved to give due course to the petition and the parties were required to
submit their respective memoranda (Rollo, p. 309). By way of manifestation and motion dated
March 9, 1989 (Rollo, p. 311), the Office of the Solicitor General adopted its statement of
position (in lieu of comment) and rejoinder as its memorandum. Petitioners and intervenor Civil
Liberties Union submitted their memoranda on March 22, 1989 and March 30, 1989,
respectively. A supplemental statement of position (in lieu of memorandum) dated March 31,
1989 was filed by respondent Commission.
The Constitution provides that the House of Representatives shall be composed of not more than
two hundred fifty (250) members, unless otherwise fixed by law, who shall be elected from the
legislative districts and those who as provided by law, shall be elected thru a party-list system.
The party-list representatives shall constitute 20% of the total number of representatives or fifty
(50) seats. One-half or twenty-five (25) of the seats allocated to party-list representatives is
reserved for sectoral representatives. The reservation is limited to three consecutive terms after
ratification of the 1987 Constitution. Thus, Section 5 (1) and (2), Article VI of the 1987
Constitution provides:
SEC. 5. (1) The House of Representatives shall be composed of not more than
two hundred and fifty members, unless otherwise fixed by law, who shall be
elected from legislative districts apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the number of their respective
inhabitants, and on the basis of a uniform and progressive ratio, and those who, as
provided by law, shall be elected through a party-list system of registered national,
regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute twenty per centum of the total
number of representatives including those under the party-list. For three
consecutive terms after the ratification of this Constitution, one-half of the seats
allocated to party-list representatives shall be filled, as provided by law, by
selection or election from the labor, peasant, urban poor, indigenous cultural
communities, women, youth, and such other sectors as may be provided by law,
except the religious sector.
Under Section 7, Article XVIII of the Constitution, the appointment of sectoral representatives is
vested upon the President until otherwise provided by law, as follows:
SEC. 7. Until a law is passed, the President may fill by appointment from a list of
nominees by the respective sectors the seats reserved for sectoral representation in
paragraph (1), Section 5 of Article VI of this Constitution.
The issue is, whether the Constitution requires the appointment of sectoral representatives to the
House of Representatives to be confirmed by the Commission on Appointments. Section 16,
Article VII of the Constitution enumerates among others, the officers who may be appointed by
the President with the consent of the Commission on Appointments, as follows:
SEC. 16. The President shall nominate and, with the consent of the Commission
on Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls or officers of the armed forces from the rank of
colonel or naval captain, and other officers whose appointments are vested in him
in this Constitution. He shall also appoint all other officers of the Government
whose appointments are not otherwise provided for by law, and those whom he
may be authorized by law to appoint. The Congress may, by law, vest the
appointment of other officers lower in rank in the President alone, in the courts, or
in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress.
In Sarmiento vs. Mison, et al. (156 SCRA 549 [19871), we construed Section 16, Article VII of
the Constitution to mean that only appointments to offices mentioned in the first sentence of the
said Section 16, Article VII require confirmation by the Commission on Appointments, as
follows:
It is readily apparent that under the provisions of the 1987 Constitution, just
quoted, there are four (4) groups of officers whom the President shall appoint.
These four (4) groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other public ministers
and consuls officers of the armed forces from the rank of colonel or naval captain,
and other officers whose appointments are vested in him in this Constitution;
Second, all other officers of the Government whose appointments are not
otherwise provided for by law;
Third, those whom the President may be authorized by law to appoint;
Fourth, officers lower in rank whose appointments the Congress may by law vest
in the President alone.
The first group of officers is clearly appointed with the consent of the
Commission on Appointments. Appointments of such officers are initiated by
nomination and, if the nomination is confirmed by the Commission on
Appointments, the President appoints.
xxx xxx xxx
(T)he purposive intention and deliberate judgment of the framers of the 1987
Constitution (is) that, except as to those officers whose appointments require the
consent of the Commission on Appointments by express mandate of the first
sentence in Sec. 16, Art. VII, appointments of other officers are left to the
President without need of confirmation by the Commission on Appointments.
This conclusion is inevitable, if we are to presume, as we must, that the framers of
the 1987 Constitution were knowledgeable of what they were doing and of the
foreseeable effects thereof.
Besides, the power to appoint is fundamentally executive or presidential in
character. Limitations on or qualifications of such power should be strictly
construed against them. Such limitations or qualifications must be clearly stated in
order to be recognized. But, it is only in the first sentence of Sec. 16, Art. VII
where it is clearly stated that appointments by the President to the positions
therein enumerated require the consent of the Commission on Appointments.
Our ruling in Mison was reiterated in the recent case of Mary Concepcion Bautista vs. Sen.
Jovito Salonga, et al. (G.R. No. 86439, promulgated on April 13, 1989) wherein the Court held:
The Mison case was the first major case under the 1987 Constitution and in
constructing Sec. 16, Art. VII of the 1987 Constitution, ... this Court, drawing
extensively from the proceedings of the 1986 Constitutional Commission and the
country's experience under the 1935 and 1973 Constitutions, held that only those
appointments expressly mentioned in the first sentence of See. 16, Art. VII are to
be reviewed by the Commission on Appointments, namely, 'the heads of the
executive departments, ambassadors, other public ministers and consuls or
officers of the armed forces from the rank of colonel or naval captain, and other
officers whose appointments are vested in him in this Constitution.' All other
appointments by the President are to be made without the participation of the
Commission on Appointments.
Since the seats reserved for sectoral representatives in paragraph 2, Section 5, Art. VI may be
filled by appointment by the President by express provision of Section 7, Art. XVIII of the
Constitution, it is undubitable that sectoral representatives to the House of Representatives are
among the "other officers whose appointments are vested in the President in this Constitution,"
referred to in the first sentence of Section 16, Art. VII whose appointments are subject to
confirmation by the Commission on Appointments (Sarmiento v. Mison, supra).
Nevertheless, there are appointments vested in the President in the Constitution which, by
express mandate of the Constitution, require no confirmation such as appointments of members
of the Supreme Court and judges of lower courts (Sec. 9, Art. VIII) and the Ombudsman and his
deputies (Sec. 9, Art. XI). No such exemption from confirmation had been extended to
appointments of sectoral representatives in the Constitution. Petitioner was appointed on April 6,
1988 pursuant to Art. XVIII, Section 7 and Art. VII, Section 16, paragraph 2 of the Constitution,
to wit:
6 April 1988
Madam:
Pursuant to Article VII, Section 16, paragraph 2 and Article XVIII, Section 7, of
the Constitution, you are hereby appointed MEMBER OF THE HOUSE OF
REPRESENTATIVES.
By virtue hereof, you may qualify to said position furnishing this office with
copies of your oath of office.
Very truly yours,
(Sgd.) CORAZON C. AQUINO
Hon. TERESITA QUINTOS-DELES
(Annex "M", Petition, Rollo, p. 108.)
The invocation of Art. XVIII, Section 7 of the Constitution as authority for the appointment of
petitioner places said appointment within the ambit of the first sentence of Section 16, Art. VII;
hence, subject to confirmation by the Commission on Appointments under the Mison doctrine.
Petitioner's appointment was furthermore made pursuant to Art. VII, Section 16, paragraph 2
which provides:
SEC. 16. ...
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.
The reference to paragraph 2, Section 16 of Article VII as additional authority for the
appointment of petitioner is of vital significance to the case at bar. The records show that
petitioner's appointment was made on April 6, 1988 or while Congress was in recess (March 26,
1988 to April 17, 1988); hence, the reference to the said paragraph 2 of Section 16, Art. VII in
the appointment extended to her.
Implicit in the invocation of paragraph 2, Section 16, Art. VII as authority for the appointment of
petitioner is, the recognition by the President as appointing authority that petitioner's
appointment requires confirmation by the Commission on Appointments. Under paragraph 2,
Section 16, Art. VII, appointments made by the President pursuant thereto "shall be effective
only until disapproval by the Commission on Appointments or until the next adjournment of the
Congress." If indeed appointments of sectoral representatives need no confirmation, the
President need not make any reference to the constitutional provisions above-quoted in
appointing the petitioner, As a matter of fact, the President in a letter dated April 11, 1989 had
expressly submitted petitioner's appointment for confirmation by the Commission on
Appointments. Considering that Congress had adjourned without respondent Commission on
Appointments having acted on petitioner's appointment, said appointment/nomination had
become moot and academic pursuant to Section 23 of the Rules of respondent Commission and
"unless resubmitted shall not again be considered by the Commission."
Petitioners further contend that nowhere in the Constitution nor in Executive Order No. 198 is
mention made of the need for petitioner's appointment to be submitted to the Commission on
Appointments for confirmation. Executive Order No. 198 promulgated on June 18, 1687 before
the convening of Congress, is denominated: "Providing for the Manner of Nomination and
Appointment of Sectoral Representatives to the House of Representatives." We agree with the
submission of respondent Commission that the provisions of Executive Order No. 198 do not
deal with the manner of appointment of sectoral representatives. Executive Order No. 1 98
confines itself to specifying the sectors to be represented, their number, and the nomination of
such sectoral representatives.
The power of the President to appoint sectoral representatives remains directly derived from
Section 7, Article XVIII of the Constitution which is quoted in the second "Whereas' clause of
Executive Order No. 198. Thus, appointments by the President of sectoral representatives require
the consent of the Commission on Appointments in accordance with the first sentence of Section
16, Art. VII of the Constitution. More to the point, petitioner Deles' appointment was issued not
by virtue of Executive Order No. 198 but pursuant to Art. VII, Section 16, paragraph 2 and Art.
XVIII, Section 7 of the Constitution which require submission to the confirmation process.
WHEREFORE, the petition for prohibition and mandamus with preliminary injunction is hereby
DISMISSED for lack of merit. Without pronouncement as to costs.
SO ORDERED.
CALDERON VS CARALE
G.R. No. 91636 April 23, 1992
PETER JOHN D. CALDERON, petitioner, vs. BARTOLOME CARALE, in his capacity as
Chairman of the National Labor Relations Commission, EDNA BONTO PEREZ,
LOURDES C. JAVIER, ERNESTO G. LADRIDO III, MUSIB M. BUAT, DOMINGO H.
ZAPANTA, VICENTE S.E. VELOSO III, IRENEO B. BERNARDO, IRENEA E. CENIZA,
LEON G. GONZAGA, JR., ROMEO B. PUTONG, ROGELIO I. RAYALA, RUSTICO L.
DIOKNO, BERNABE S. BATUHAN and OSCAR N. ABELLA, in their capacity as
Commissioners of the National Labor Relations Commission, and GUILLERMO
CARAGUE, in his capacity as Secretary of Budget and Management, respondents.
PADILLA, J .:
Controversy is focused anew on Sec. 16, Art. VII of the 1987 Constitution which provides:
Sec. 16. The President shall nominate and, with the consent of the Commission on
Appointments, appoint the heads of the executive departments, ambassadors,
other public ministers and consuls, or officers of the armed forces from the rank
of colonel or naval captain, and other officers whose appointments are vested in
him in this Constitution. He shall also appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and
those whom he may be authorized by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in rank in the President alone, in the
courts, or in the heads of departments, agencies, commissions, or boards.
The President shall have the power to make appointments during the recess of the
Congress, whether voluntary or compulsory, but such appointments shall be
effective only until disapproval by the Commission on Appointments or until the
next adjournment of the Congress.
1

The power of the Commission on Appointments (CA for brevity) to confirm appointments,
contained in the aforequoted paragraph 1 of Sec. 16, Art. VII, was first construed in Sarmiento
III vs. Mison
2
as follows:
. . . it is evident that the position of Commissioner of the Bureau of Customs (a
bureau head) is not one of those within the first group of appointments where the
consent of the Commission on Appointments is required. As a matter of fact, as
already pointed out, while the 1935 Constitution includes "heads of bureaus"
among those officers whose appointments need the consent of the Commission on
Appointments, the 1987 Constitution, on the other hand, deliberately excluded the
position of "heads of bureaus" from appointments that need the consent
(confirmation) of the Commission on Appointments.
. . . Consequently, we rule that the President of the Philippines acted within her
constitutional authority and power in appointing respondent Salvador Mison,
Commissioner of the Bureau of Customs, without submitting his nomination to
the Commission on Appointments for confirmation. . . .
. . . In the 1987 Constitution, however, as already pointed out, the clear and
expressed intent of its framers was to exclude presidential appointments from
confirmation by the Commission on Appointments, except appointments to offices
expressly mentioned in the first sentence of Sec. 16, Art. VII. Consequently, there
was no reason to use in the third sentence of Sec. 16, Article VII the word "alone"
after the word "President" in providing that Congress may by law vest the
appointment of lower-ranked officers in the President alone, or in the courts, or in
the heads of departments, because the power to appoint officers whom he (the
president) may be authorized by law to appoint is already vested in the President,
without need of confirmation by the Commission on Appointments, in the second
sentence of the same Sec. 16, Article VII." (emphasis supplied)
Next came Mary Concepcion Bautista v. Salonga,
3
this time involving the appointment of the
Chairman of the Commission on Human Rights. Adhering to the doctrine in Mison, the Court
explained:
. . . Since the position of Chairman of the Commission on Human Rights is not
among the positions mentioned in the first sentence of Sec. 16, Art. VII of the
1987 Constitution, appointments to which are to be made with the confirmation of
the Commission on Appointments, it follows that the appointment by the
President of the Chairman of the CHR is to be made without the review or
participation of the Commission on Appointments. To be more precise, the
appointment of the Chairman and Members of the Commission on Human Rights
is not specifically provided for in the Constitution itself, unlike the Chairmen and
Members of the Civil Service Commission, the Commission on Elections and the
Commission on Audit, whose appointments are expressly vested by the
Constitution in the president with the consent of the Commission on
Appointments. The president appoints the Chairman and Members of The
Commission on Human Rights pursuant to the second sentence in Section 16, Art.
VII, that is, without the confirmation of the Commission on Appointments
because they are among the officers of government "whom he (the President) may
be authorized by law to appoint." And Section 2(c), Executive Order No. 163, 5
May 1987, authorizes the President to appoint the Chairman and Members of the
Commission on Human Rights.
Consistent with its rulings in Mison and Bautista, in Teresita Quintos Deles, et al. v. The
Commission on Constitutional Commissions, et al.,
4
the power of confirmation of the
Commission on Appointments over appointments by the President of sectoral representatives in
Congress was upheld because:
. . . Since the seats reserved for sectoral representatives in paragraph 2, Section 5,
Art. VI may be filled by appointment by the President by express provision of
Section 7, Art. XVIII of the Constitution, it is indubitable that sectoral
representatives to the House of Representatives are among the "other officers
whose appointments are vested in the President in this Constitution," referred to in
the first sentence of Section 16, Art. VII whose appointments are subject to
confirmation by the Commission on Appointments.
From the three (3) cases above-mentioned, these doctrines are deducible:
1. Confirmation by the Commission on Appointments is required only for presidential appointees
mentioned in the first sentence of Section 16, Article VII, including, those officers whose
appointments are expressly vested by the Constitution itself in the president (like sectoral
representatives to Congress and members of the constitutional commissions of Audit, Civil
Service and Election).
2. Confirmation is not required when the President appoints other government officers whose
appointments are not otherwise provided for by law or those officers whom he may be
authorized by law to appoint (like the Chairman and Members of the Commission on Human
Rights). Also, as observed in Mison, when Congress creates inferior offices but omits to provide
for appointment thereto, or provides in an unconstitutional manner for such appointments, the
officers are considered as among those whose appointments are not otherwise provided for by
law.
Sometime in March 1989, RA 6715 (Herrera-Veloso Law), amending the Labor Code (PD 442)
was approved. It provides in Section 13 thereof as follows:
xxx xxx xxx
The Chairman, the Division Presiding Commissioners and other Commissioners
shall all be appointed by the President, subject to confirmation by the
Commission on Appointments. Appointments to any vacancy shall come from the
nominees of the sector which nominated the predecessor. The Executive Labor
Arbiters and Labor Arbiters shall also be appointed by the President, upon
recommendation of the Secretary of Labor and Employment, and shall be subject
to the Civil Service Law, rules and regulations.
5

Pursuant to said law (RA 6715), President Aquino appointed the Chairman and Commissioners
of the NLRC representing the public, workers and employers sectors. The appointments stated
that the appointees may qualify and enter upon the performance of the duties of the office. After
said appointments, then Labor Secretary Franklin Drilon issued Administrative Order No. 161,
series of 1989, designating the places of assignment of the newly appointed commissioners.
This petition for prohibition questions the constitutionality and legality of the permanent
appointments extended by the President of the Philippines to the respondents Chairman and
Members of the National Labor Relations Commission (NLRC), without submitting the same to
the Commission on Appointments for confirmation pursuant to Art. 215 of the Labor Code as
amended by said RA 6715.
Petitioner insists on a mandatory compliance with RA 6715 which has in its favor the
presumption of validity. RA 6715 is not, according to petitioner, an encroachment on the
appointing power of the executive contained in Section 16, Art. VII, of the Constitution, as
Congress may, by law, require confirmation by the Commission on Appointments of other
officers appointed by the President additional to those mentioned in the first sentence of Section
16 of Article VII of the Constitution. Petitioner claims that the Mison and Bautista rulings are
not decisive of the issue in this case for in the case at bar, the President issued permanent
appointments to the respondents without submitting them to the CA for confirmation despite
passage of a law (RA 6715) which requires the confirmation by the Commission on
Appointments of such appointments.
The Solicitor General, on the other hand, contends that RA 6715 which amended the Labor Code
transgresses Section 16, Article VII by expanding the confirmation powers of the Commission
on Appointments without constitutional basis. Mison and Bautista laid the issue to rest, says the
Solicitor General, with the following exposition:
As interpreted by this Honorable Court in the Mison case, confirmation by the
Commission on Appointments is required exclusively for the heads of executive
departments, ambassadors, public ministers, consuls, officers of the armed forces
from the rank of colonel or naval captain, and other officers whose appointments
are vested in the President by the Constitution, such as the members of the various
Constitutional Commissions. With respect to the other officers whose
appointments are not otherwise provided for by the law and to those whom the
President may be authorized by law to appoint, no confirmation by the
Commission on Appointments is required.
Had it been the intention to allow Congress to expand the list of officers whose
appointments must be confirmed by the Commission on Appointments, the
Constitution would have said so by adding the phrase "and other officers required
by law" at the end of the first sentence, or the phrase, "with the consent of the
Commission on Appointments" at the end of the second sentence. Evidently, our
Constitution has significantly omitted to provide for such additions.
The original text of Section 16 of Article VII of the present Constitution as
embodied in Resolution No. 517 of the Constitutional Commission reads as
follows:
"The President shall nominate and, with the consent of the
Commission on Appointments, shall appoint the heads of the
executive departments and bureaus, ambassadors, other public
ministers and consuls, or officers of the armed forces from the rank
of captain or commander, and all other officers of the Government
whose appointments are not herein 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 inferior officers in
the President alone, in the courts or in the heads of the
department."
Three points should be noted regarding sub-section 3 of Section 10 of Article VII
of the 1935 Constitution and in the original text of Section 16 of Article VII of the
present Constitution as proposed in Resolution No. 517.
First, in both of them, the appointments of heads of bureaus were required to be
confirmed by the Commission on Appointments.
Second, in both of them, the appointments of other officers, "whose appointments
are not otherwise provided for by law to appoint" are expressly made subject to
confirmation by the Commission on Appointments. However, in the final version
of Resolution No. 517, as embodied in Section 16 of Article VII of the present
Constitution, the appointment of the above mentioned officers (heads of bureaus;
other officers whose appointments are not provided for by law; and those whom
he may be authorized by law to appoint) are excluded from the list of those
officers whose appointments are to be confirmed by the Commission on
Appointments. This amendment, reflected in Section 16 of Article VII of the
Constitution, clearly shows the intent of the framers to exclude such appointments
from the requirement of confirmation by the Commission on Appointments.
Third, under the 1935 Constitution the word "nominate" qualifies the entire
Subsection 3 of Section 10 of Article VII thereof.
Respondent reiterates that if confirmation is required, the three (3) stage process
of nomination, confirmation and appointment operates. This is only true of the
first group enumerated in Section 16, but the word nominate does not any more
appear in the 2nd and 3rd sentences. Therefore, the president's appointment
pursuant to the 2nd and 3rd sentences needs no confirmation.
6

The only issue to be resolved by the Court in the present case is whether or not Congress may, by
law, require confirmation by the Commission on Appointments of appointments extended by the
president to government officers additional to those expressly mentioned in the first sentence of
Sec. 16, Art. VII of the Constitution whose appointments require confirmation by the
Commission on Appointments.
To resolve the issue, we go back to Mison where the Court stated:
. . . there are four (4) groups of officers whom the President shall appoint. These
four (4) groups, to which we will hereafter refer from time to time, are:
First, the heads of the executive departments, ambassadors, other
public ministers and consuls, officers of the armed forces from the
rank of colonel or naval captain, and other officers whose
appointments are vested in him in this Constitution;
Second, all other officers of the Government whose appointments
are not otherwise provided for by law;
Third, those whom the president may be authorized by law to
appoint;
Fourth, officers lower in rank whose appointments the Congress
may by law vest in the President alone.
7

Mison also opined:
In the course of the debates on the text of Section 16, there were two (2) major
changes proposed and approved by the Commission. These were (1) the exclusion
of the appointments of heads of bureaus from the requirement of confirmation by
the Commission on Appointments; and (2) the exclusion of appointments made
under the second sentence of the section from the same requirement. . . .
The second sentence of Sec. 16, Art. VII refers to all other officers of the government whose
appointments are not otherwise provided for by law and those whom the President may be
authorized by law to appoint.
Indubitably, the NLRC Chairman and Commissioners fall within the second sentence of Section
16, Article VII of the Constitution, more specifically under the "third groups" of appointees
referred to in Mison, i.e. those whom the President may be authorized by law to appoint.
Undeniably, the Chairman and Members of the NLRC are not among the officers mentioned in
the first sentence of Section 16, Article VII whose appointments requires confirmation by the
Commission on Appointments. To the extent that RA 6715 requires confirmation by the
Commission on Appointments of the appointments of respondents Chairman and Members of the
National Labor Relations Commission, it is unconstitutional because:
1) it amends by legislation, the first sentence of Sec. 16, Art. VII of the Constitution by adding
thereto appointments requiring confirmation by the Commission on Appointments; and
2) it amends by legislation the second sentence of Sec. 16, Art. VII of the Constitution, by
imposing the confirmation of the Commission on Appointments on appointments which are
otherwise entrusted only with the President.
Deciding on what laws to pass is a legislative prerogative. Determining their constitutionality is a
judicial function. The Court respects the laudable intention of the legislature. Regretfully,
however, the constitutional infirmity of Sec. 13 of RA 6715 amending Art. 215 of the Labor
Code, insofar as it requires confirmation of the Commission on Appointments over appointments
of the Chairman and Member of the National Labor Relations Commission (NLRC) is, as we see
it, beyond redemption if we are to render fealty to the mandate of the Constitution in Sec. 16, Art.
VII thereof.
Supreme Court decisions applying or interpreting the Constitution shall form part of the legal
system of the Philippines.
8
No doctrine or principle of law laid down by the Court in a decision
rendered en banc or in division may be modified or reversed except by the Court sitting en banc.

9

. . . The interpretation upon a law by this Court constitutes, in a way, a part of the
law as of the date that law was originally passed, since this Court's construction
merely establishes the contemporaneous legislative intent that the law thus
construed intends to effectuate. The settled rule supported by numerous
authorities is a restatement of the legal maxim "legis interpretado legis vim
obtinent" the interpretation placed upon the written law by a competent court
has the force of law.
10

The rulings in Mison, Bautista and Quintos-Deles have interpreted Art. VII, Sec. 16 consistently
in one manner. Can legislation expand a constitutional provision after the Supreme Court has
interpreted it?
In Endencia and Jugo vs. David,
11
the Court held:
By legislative fiat as enunciated in Section 13, Republic Act No. 590, Congress
says that taxing the salary of a judicial officer is not a decrease of compensation.
This is a clear example of interpretation or ascertainment of the meaning of the
phrase "which shall not be diminished during their continuance in office," found
in Section 9, Article VIII of the Constitution, referring to the salaries of judicial
officers.
xxx xxx xxx
The rule is recognized elsewhere that the legislature cannot pass
any declaratory act, or act declaratory of what the law was before
its passage, so as to give it any binding weight with the courts. A
legislative definition of a word as used in a statute is not
conclusive of its meaning as used elsewhere; otherwise, the
legislature would be usurping a judicial function in defining a term.
(11 Am. Jur., 914, emphasis supplied).
The legislature cannot, upon passing law which violates a
constitutional provision, validate it so as to prevent an attack
thereon in the courts, by a declaration that it shall be so construed
as not to violate the constitutional inhibition. (11 Am., Jur., 919,
emphasis supplied).
We have already said that the Legislature under our form of government is
assigned the task and the power to make and enact laws, but not to interpret them.
This is more true with regard to the interpretation of the basic law, the
Constitution, which is not within the sphere of the Legislative department. If the
Legislature may declare what a law means, or what a specific portion of the
Constitution means, especially after the courts have in actual case ascertained its
meaning by interpretation and applied it in a decision, this would surely cause
confusion and instability in judicial processes and court decisions. Under such a
system, a final court determination of a case based on a judicial interpretation of
the law or of the Constitution may be undermined or even annulled by a
subsequent and different interpretation of the law or of the Constitution by the
Legislative department that would be neither wise nor desirable, being clearly
violative of the fundamental principles of our constitutional system of government,
particularly those governing the separation of powers.
14
(Emphasis supplied)
Congress, of course, must interpret the Constitution, must estimate the scope of its constitutional
powers when it sets out to enact legislation and it must take into account the relevant
constitutional prohibitions.
15

. . . The Constitution did not change with public opinion.
It is not only the same words, but the same in meaning . . . and as long as it it
speaks not only in the same words, but with the same meaning and intent with
which it spoke when it came from the hands of its framers, and was voted and
adopted by the people . . .
16

The function of the Court in passing upon an act of Congress is to "lay the article of the
Constitution which is invoked beside the statute which is challenged and to decide whether the
latter squares with the former" and to "announce its considered judgment upon the question."
17

It can not be overlooked that Sec. 16, Art. VII of the 1987 Constitution was deliberately, not
unconsciously, intended by the framers of the 1987 Constitution to be a departure from the
system embodied in the 1935 Constitution where the Commission on Appointments exercised
the power of confirmation over almost all presidential appointments, leading to many cases of
abuse of such power of confirmation. Subsection 3, Section 10, Art. VII of the 1935 Constitution
provided:
3. The President shall nominate and with the consent of the Commission on
Appointments, shall appoint the heads of the executive departments and bureaus,
officers of the Army from the rank of colonel, of the Navy and Air Forces from
the rank of captain or commander, and all other officers of the Government whose
appointments are not herein otherwise provided for, and those whom he may be
authorized by law to appoint; . . .
The deliberate limitation on the power of confirmation of the Commission on Appointments over
presidential appointments, embodied in Sec. 16, Art. VII of the 1987 Constitution, has
undoubtedly evoked the displeasure and disapproval of members of Congress. The solution to
the apparent problem, if indeed a problem, is not judicial or legislative but constitutional. A
future constitutional convention or Congress sitting as a constituent (constitutional) assembly
may then consider either a return to the 1935 Constitutional provisions or the adoption of a
hybrid system between the 1935 and 1987 constitutional provisions. Until then, it is the duty of
the Court to apply the 1987 Constitution in accordance with what it says and not in accordance
with how the legislature or the executive would want it interpreted.
WHEREFORE, the petition is DISMISSED. Art. 215 of the Labor Code as amended by RA
6715 insofar as it requires the confirmation of the Commission on Appointments of
appointments of the Chairman and Members of the National Labor Relations Commission
(NLRC) is hereby declared unconstitutional and of no legal force and effect.
SO ORDERED.
Separate Opinions
GUTIERREZ, J R., concurring:
When the issues in this petition were first raised in Sarmiento III v. Mison (156 SCRA 549
[1987]), I joined Justice Cruz in a dissent because I felt that the interpretation of Section 16,
Article VII by the majority of the Court results in absurd or irrational consequences. The framers
could not have intended what the majority ruled to be the meaning of the provision. When the
question was again raised in Bautista v. Salonga (172 SCRA 160 [1989]), I reiterated my dissent
and urged a re-examination of the doctrine stated in Sarmiento v. Mison.
The issue is again before us. Even as I continue to believe that the majority was wrong in the
Sarmiento and Bautista cases, I think it is time to finally accept the majority opinion as the
Court's ruling on the matter and one which everybody should respect. There will be no end to
litigation if, everytime a high government official is appointed without confirmation by the
Commission on Appointments, another petition is filed with this Court.
I, therefore, VOTE with the majority to DISMISS the PETITION.
CRUZ, J ., dissenting:
I dissent on the basis of my dissent in Sarmiento v. Mison, which I believe should be re-
examined instead of being automatically re-affirmed simply because of its original adoption. I do
not believe we should persist in error on the ground merely of adherence to judicial precedent,
however unsound.
STEPS IN THE APPOINTING PROCESS
REGULAR APPOINTMENTS
APPOINTMENTS WHICH DOES NOT RENDER CONFIRMATION
APPOINTMENT TO CAREER SERVICE OF THE CIVIL SERVICE
TOMALI VS CSC
G.R. No. 110598 December 1, 1994
MONA A. TOMALI petitioner, vs. CIVIL SERVICE COMMISSION, OFFICE ON
MUSLIM AFFAIRS (OMA) and ROCAINA M. LUCMA, respondents.
VITUG, J .:
In this special civil action for certiorari, petitioner questions her "replacement" by private
respondent in a contested position in the Office on Muslim Affairs.
On 01 July 1990, petitioner Mona A. Tomali was appointed Development Management Officer
II ("DMO II") in the Office on Muslim Affairs ("OMA"). The appointment was extended by then
OMA Executive Director Dimasangcay A. Pundato. She assumed the duties and functions of the
office four months later, or on 01 November 1990, at which time, the appointment had not yet
been transmitted to the Civil Service Commission ("CSC") for approval.
Prior to her assumption to the new position, petitioner had worked in different capacities with the
Mindanao State University starting as Records Clerk (01 June 1983 to 31 December 1986), Clerk
Typist (02 January 1987 to 30 June 1989), and, finally, as "Budget Assistant" (01 July 1989 to 31
October 1990).
1

On 16 July 1991, the new Director of the OMA, Dr. Ali Basir Lucman, revoking the previous
incomplete appointment of petitioner, appointed private respondent Rocaina M. Lucman to the
position in question (DMO II). Petitioner, on 29 July 1991, sent public respondent OMA a letter
protesting her replacement. On 01 August 1991, the Chief of the Human Resources Management
Division of the OMA communicated to petitioner the disapproval/expiration of her appointment.

2
Forthwith, private respondent took her oath of office and assumed the duties and functions of
DMO II.
On 12 August 1991, petitioner reiterated her protest.
3
The Merit Systems Protection Board
("MSPB"), acting thereon, rendered a decision, dated 23 July 1992, dismissing the
protest/complaint for lack of merit. MSPB held:
Glaring is the fact that protestant's appointment to the contested position was not
approved by the Civil Service Commission, hence, incomplete. In this regard,
Section 11, Rule V, of the Omnibus Rules Implementing Book V of Executive
Order No. 292, Administrative Code of 1987 is clear and explicit. Said provision
reads, thus:
Sec. 11. An appointment not submitted to the Commission, within thirty (30) days
from the date of issuance, which shall be the date appearing on the face of the
instrument, shall be ineffective.
As applied to the case of the herein protestant, it appears that the latter has no
basis in law to cling to the contested position. Her prior continuous stay in office
was at most by mere tolerance of the appointing authority. As her appointment is
incomplete for lack of the requisite approval of the Civil Service Commission or
its proper Regional or Field Office, no right to security of tenure as guaranteed
by law and the Constitution attaches thereto or for incumbent to invoke. . . . .
xxx xxx xxx
That being so, the proper appointing authority, in this case, the OMA Executive
Director may, in the exercise of sound discretion, cancel or revoke the said
incomplete appointment and appoint another person.
The circumstance showing that the non-approval of protestant's appointment was
due to the belated transmittal thereof to this Commission is of no consequence nor
improve her lot as a holder of an incomplete appointment. There is no showing
that the non-submission was motivated by bad faith, spite or malice or at least
attributable to the fault of the
newly-installed OMA Executive Director.
4

Her request for reconsideration having been denied on 27 November 1992, petitioner appealed to
the CSC. In its Resolution No. 93-945, dated 12 March 1993, the Commission dismissed the
appeal for lack of merit.
5

Hence, the instant recourse to this Court.
We fail to see any merit in the petition.
An appointment to a position in the civil service is required to be submitted to the CSC for
approval in order to determine, in main, whether the proposed appointee is qualified to hold the
position and whether or not the rules pertinent to the process of appointment are followed; thus:
Sec. 9. Powers and Functions of the Commission. The Commission shall
administer the Civil Service and shall have the following powers and functions:
xxx xxx xxx
(h) Approve all appointments, whether original or promotional, to positions in the
civil service, except those of presidential appointees, members of the Armed
Forces of the Philippines, police forces, firemen, and jailguards, and disapprove
those where the appointees do not possess the appropriate eligibility or required
qualifications. An appointment shall take effect immediately upon issue by the
appointing authority if the appointee assumes his duties immediately and shall
remain effective until it is disapproved by the Commission, if this should take
place, without prejudice to the liability of the appointing authority for
appointments issued in violation of existing laws or rules: Provided, finally, That
the Commission shall keep a record of appointments of all officers and employees
in the civil service. All appointments requiring the approval of the Commission as
herein provided, shall be submitted to it by the appointing authority within thirty
days from issuance, otherwise the appointment becomes ineffective thirty days
thereafter.
6

The Omnibus Rules Implementing Book V of Executive Order No. 292, also known as the
Administrative Code of 1987, among other things, provides:
Sec. 11. An appointment not submitted to the Commission within thirty (30) days
from the date of issuance which shall be the date appearing to the face of the
appointment, shall be ineffective. . . . .
7

Compliance with the legal requirements for an appointment to a civil service position is essential
in order to make it fully effective.
8
Without the favorable certification or approval of the
Commission, in cases when such approval is required, no title to the office can yet be deemed to
be permanently vested in favor of the appointee, and the appointment can still be recalled or
withdrawn by the appointing authority.
9
Until an appointment has become a completed act, it
would likewise be precipitate to invoke the rule on security of tenure.
10

Petitioner faults public respondents for their failure to have her appointment properly attended to
and timely acted upon and for, in effect, allowing her in the meanwhile to assume the office in
question. In Favis vs. Rupisan,
11
this Court has said:
The tolerance, acquiescence or mistake of the proper officials, resulting in the
non-observance of the pertinent rules on the matter does not render the legal
requirement, on the necessity of approval of the Commissioner of Civil Service of
appointments, ineffective and unenforceable. The employee, whose appointment
was not approved, may only be considered as a de facto officer.
Petitioner herself would not appear to be all that blameless. She assumed the position four
months after her appointment was issued or months after that appointment had already lapsed or
had become ineffective by operation of law. Petitioner's appointment was issued on 01 July 1990,
but it was only on 31 May 1991 that it was submitted to the CSC, a fact which she knew, should
have known or should have at least verified considering the relatively long interval of time
between the date of her appointment and the date of her assumption to office. The CSC, such as
to be expected, disapproved the appointment
12
in consonance with Presidential Decree No. 807.
When private respondent Lucman was thus appointed DMO II on 16 July 1991, petitioner could
not be said to have theretofore earned a valid tenure to the same position. In its resolution of 12
March 1993, the CSC, which dismissed petitioner's appeal, said:
The instant case is about the recall of Tomali's appointment as Development
Management Officer II, Office on Muslim Affairs in favor of Rocaina Lucman
prior to the approval by the Commission. Subsequently, Tomali filed a protest
against the appointment of Rocaina Lucman.
It may be noted that the issue on the said recall of Tomali's appointment had
already been the subject matter in CSC Resolution No.
91-1237, wherein the Commission ruled as follows:
WHEREFORE, foregoing premises considered, this Commission
upholds the power of the appointing authority to recall an
appointment. Accordingly, the separation of Mona Tomali is
declared to be in order. (Emphasis supplied.)
Further, a motion for reconsideration was denied in CSC Resolution No. 91-1463,
dated December 3, 1991.
Considering that Tomali had already been separated from the service upon recall
of her appointment, her protest against the appointment of Rocaina Lucman has
no merit. She has no more personality to file a protest.
13

It was well within the authority and discretion of the new OMA Director, therefore, to appoint
private respondent, and such prerogative could not be questioned even on a showing that
petitioner might have been better qualified for the position.
The rule has always been that an appointment is essentially a discretionary act, performed by an
officer in whom it is vested according to his best judgment, the only condition being that the
appointee should possess all the qualifications required therefor.
14
There is nothing on record to
convince us that the new OMA Director has unjustly favored private respondent nor has
exercised his power of appointment in an arbitrary, whimsical or despotic manner.
In sum, we see no grave abuse of discretion on the part of public respondents in their questioned
dismissal of petitioner's protest.
WHEREFORE, the petition for certiorari is DISMISSED. No special pronouncement on costs.
SO ORDERED.
LOPEZ VS CSC
G.R. No. 92140 February 19, 1991
REYNALDO D. LOPEZ, petitioner, vs. CIVIL SERVICE COMMISSION and ROMEO V.
LUZ, JR., respondents.
GUTIERREZ, JR., J .:p
Petitioner Reynaldo Lopez assails the nullification by the Civil Service Commission of his
appointment as Harbor Master of the Manila South Harbor.
In 1983, petitioner Lopez, along with private respondent Romeo V. Luz, Jr. and Roberto
Abellana, was appointed as Assistant Harbor Master at Manila International Container Terminal,
Manila South Harbor and Manila North Harbor, respectively.
Pursuant to Executive Order No. 125, the Ministry (now Department) of Transportation and
Communications (DOTC) was reorganized. Hence, the reduction of the number of Assistant
Harbor Masters (now designated as Harbor Masters) in the Philippine Ports Authority (PPA)
from three (3) to two (2). A reevaluation of the qualifications of petitioner Lopez, Luz, and
Abellana was conducted by a placement committee of the PPA to determine who should assume
the two positions. The PPA General Manager, Rogelio A. Dayan, appointed petitioner Lopez as
Harbor Master for the South Harbor after considering the evaluation conducted by the Placement
Committee of the PPA the results of which reveal that petitioner was the most outstanding
among the three. The evaluation was formally conducted and superseded the one earlier handled
by a task force. It took into account the following: education and training; experience, physical
characteristics and personality traits; and performance of each candidate. The records show that
respondent Luz rated third.
Luz protested Lopez's appointment after it was approved by the Assistant Director of the Civil
Service Field Office, Guillermo R. Silva.
On February 15, 1989, the protest/appeal was denied by the PPA General Manager who
explained that Luz was not qualified for any of the two slots according to the over-all standing of
the contenders.
Luz then appealed to the Civil Service Commission (CSC) which, on July 6, 1989, ruled that
while the candidates were all qualified, "there was no finding who among the three contenders is
considered the most qualified and competent to merit appointment . . ., the previous assessments
of the candidates having been found defective and not in accordance with the law and
implementing regulations." The CSC directed that "comparative assessments" be made by an
appropriate Placement Committee. These assessments would then be the basis of the
appointments.
On October 17, 1989, the CSC denied a motion for reconsideration filed by the PPA and ordered
the submission of the results of the re-assessment.
On November 10, 1989, the PPA submitted to the Commission the results of the re-assessment
conducted by its Placement Committee which was reconvened for that purpose. The results
explained that the Committee utilized evaluation instruments that have been validated for use in
promotions to assess performance of the candidates, their education and training, experience and
outstanding accomplishments. It, however, noted certain constraints which led to the adoption of
modified measures. For instance, it noted the absence of an established instrument to determine
Physical Characteristics and Personality Traits so that it had to resort to an assessment conducted
by a professional psychiatrist-consultant on the mental alertness, reaction to pressure, personality
and dependability of the candidates. Also, in the absence of complete performance appraisal
ratings of all the three candidates for the years 1987 to 1988, it utilized only the available ratings
for two rating periods i.e., in January-June 1986 and January-June 1987 in which all three
candidates were rated. It did not rate outstanding accomplishments due to the absence of a valid
instrument, but it considered two (2) commendations given to Luz for his past performance.
Moreover, it did not measure each of the candidates' Potential which accounts for 25 points out
of the total standard points. It set the maximum score to a total of 70 points only. The
comparative evaluation of the candidates for the position of Harbor Master showed that
petitioner Lopez garnered 51 points, Abellana 41.75 points, and respondent Luz 39.75
points.
Despite this compliance by the PPA, the Commission, on February 14, 1990, found that the re-
assessment was not in order. It ruled that the immediate supervisor of respondent Luz was in the
best position to assess the competence of the respondent and not a psychiatric-consultant who
was merely a contractual employee and susceptible to partiality. The Commission stressed that
the Placement Committee's current assessment ignored some of the performance appraisal
ratings previously made on respondent Luz, as well as the PPA 201 files containing only Luz's
record of achievements. It also noted other factors which allegedly would affect his personality
traits rating. Thus, it directed the appointment of Luz as the Harbor Master instead of the
petitioner.
Hence, this petition.
Lopez now alleges that his constitutional right to due process of law has been violated because
he was never informed or notified of the appeal of respondent Luz, the entire proceedings held
on the case, and the resolutions of the Commission. He was never invited for comment during
the pendency of the appeal. He allegedly learned about the appeal only after being informed by
the PPA that his appointment had been revoked and that respondent Luz was directed to assume
the position.
The respect for the right to due process in actions before administrative agencies and
constitutional commissions includes the basic requirement of granting the person, whose
appointment is being contested, an opportunity to be heard. It is conceded that petitioner Lopez
was merely a nominal party in the appeal such that the appellee therein was actually the PPA
whose act of appointing was being questioned. Nevertheless, the Commission should have taken
into account the right of the subject person involved to be informed of the appeal so that he may
be given a chance to present his side. A fundamental requirement of procedural due process
demands that the interested parties must have an opportunity to present their case and the
decision or resolution should be supported by substantial evidence presented by the affected
parties before the tribunal (Ang Tibay v. CIR, 69 Phil. 635 [1940]).
The petitioner asserts that the Civil Service Commission gravely and seriously erred in nullifying
his appointment and instead substituting its decision for that of the PPA. For its part, the
respondent Commission alleged that the selection made by the PPA was discriminatory against
Luz and did not conform to the requirements of the law, because other performance ratings of
Luz were not given weight. It justified the reversal of the appointment by saying that the
Constitution and Rep. Act No. 6656 require that an appointment satisfies the merit and fitness
standard, or that "the most qualified and competent shall be preferred."
The private respondent maintains basically the same arguments set forth by the respondent
Commission.
The records explicitly show that the Placement Committee of the PPA disclosed the manner by
which it assessed all the candidates. It specifically took note of certain limitations like the
absence of ratings of all candidates for certain periods which prompted it to avail of those
instruments showing data in which all three of the contenders were subjected to evaluation. This
was resorted to in the desire to achieve fairness to all candidates. It admitted having
acknowledged other performance ratings and commendations received by respondent Luz.
However, all ratings considered, the Placement Committee was of the opinion that the petitioner
is the most qualified. The appointing power was given a fair and honest appraisal which fully
considered the strengths and weaknesses of the candidates. The petitioner was appointed.
The role of the Civil Service Commission in establishing a career service and in promoting the
morale, efficiency, integrity, responsiveness, and courtesy among civil servants is not disputed
by petitioner Lopez. On the other hand, the discretionary power of appointment delegated to the
heads of departments or agencies of the government is not controverted by the respondents. In
the appointment, placement and promotion of civil service employees according to merit and
fitness, it is the appointing power, especially where it is assisted by a screening committee
composed of persons who are in the best position to screen the qualifications of the nominees,
who should decide on the integrity, performance and capabilities of the future appointees. Under
Section 9 (h) Presidential Decree No. 807 which authorizes the respondent Commission to
(h) Approve all appointments, whether original or promotional, to positions in the
civil service, except those of presidential appointees, members of the Armed
Forces of the Philippines, police forces, firemen, and jailguards, and disapprove
those where the appointees do not possess the appropriate eligibility or required
qualifications. An appointment shall take effect immediately upon issue by the
appointing authority if the appointee assumes his duties immediately and shall
remain effective until it is disapproved by the Commission, if this should take
place, without prejudice to the liability of the appointing authority for
appointments issued in violation of existing laws or rules; Provided, finally, that
the Commission shall keep a record of appointments of all officers and employees
in the civil service. All appointments requiring the approval of the Commission as
herein provided, shall be submitted to it by the appointing authority within thirty
days from issuance, otherwise, the appointment becomes ineffective thirty days
thereafter. (Emphasis supplied)
the Commission's power does not extend to considerations other than those enumerated
in the law such as the belief that there are others more qualified. The law limits the
Commission's authority only to whether or not the appointees possess the legal
qualifications and the appropriate civil service eligibility, nothing else. To go beyond this
would be to set at naught the discretionary power of the appointing authority and to give
to the Commission a task which the law (Sec. 6, Rep. Act No. 6656) does not confer.
This does not mean that the Commission's act of approving or disapproving becomes
ministerial. Far from it. Section 9 (h) of the Civil Service Law permits the exercise by the
Commission of its judgment upon the validity of the appointment by specifying the
criterion for approval of appointments. (Meralco Securities Corp. v. Savellano, 117
SCRA 804 [1982]) The authority given to the Commission, therefore, is very far from a
mere mechanical act in which no discretion or exercise of judgment is allowed.
The Court has defined the parameters within which the power of approval of appointments shall
be exercised by the respondent Commission. In the case of Luego v. Civil Service Commission,
143 SCRA 327 [1986], the Court ruled that all the Commission is actually authorized to do is to
check if the appointee possesses the qualifications and appropriate eligibility: "If he does, his
appointment is approved; if not it is disapproved." We further ruled that the Commission has no
authority to revoke an appointment simply because it believed that the private respondent was
better qualified for that would have constituted an encroachment of the discretion vested solely
in the appointing authority. The Commission cannot exceed its power by substituting its will for
that of the appointing authority. (Central Bank v. Civil Service Commission, 171 SCRA 744
[1989]).
The power of appointment exercised after a judicious recommendation made by a placement
Committee of the agency concerned is:
(A)n essentially discretionary power and must be performed by the officer in
which it is vested according to his best lights, the only condition being that the
appointee should possess the qualification required by law. If he does, then the
appointment cannot be faulted on the ground that there are others better qualified
who should have been preferred. This is a political question involving
considerations of wisdom which onlyu the appointing authority can decide.
(Emphasis supplied; Luego v. Civil Service Commission, supra, at p. 332)
The head of an agency who is the appointing power is the one most knowledgeable to decide
who can best perform the functions of the office. (Ocampo v. Subido, 72 SCRA 433 [1976];
Torres v. Borja, 56 SCRA 47 [1974]; Santiago v. Civil Service Commission, 178 SCRA 733
[1989] He has a wide latitude of choice as to the person to appoint where the law does not
impose rigid conditions. (Reyes v. Abeleda, 22 SCRA 825 [1968]). Section 6, Rep. Act No. 6656
on government reorganization merely provides that the selection or placement should be done
through the creation of a Placement Committee the members of which are representatives of the
head of the agency as well as representatives of the head of the agency as well as representatives
of the employees. The committee's work is recommendatory and does not fix a stringent formula
regarding the mode of choosing from among the candidates. Thus, the respondents' arguments on
the alleged inconsistencies and non-conformity with Rep. Act No. 6656 in rating the contenders
are without merit.
In view of the foregoing, the Court is not the least bit convinced by the contentions of the public
and private respondents. It is apparent from the records that the PPA disclosed all the instruments
used, the limitations and the adjustments made to the end that the results would be fair to all the
candidates alike. The hiring of an independent psychiatrist-consultant, for instance, proves the
inclination of the committee towards impartiality. More important, the Court emphasizes that the
Commission has no authority to substitute its judgment for that of the Philippine Ports Authority
when it comes to evaluating the performance, personality, and accomplishments of candidates
who all have the necessary eligibility and legal qualifications.
WHEREFORE, the petition is hereby GRANTED. The resolutions of the respondent Civil
Service Commission dated July 6, 1989, October 17, 1989, and February 14, 1990 are
REVERSED and SET ASIDE. Petitioner REYNALDO D. LOPEZ is declared to be entitled to
the office in dispute by virtue of this permanent appointment thereto effective October 1, 1988.
The temporary restraining order issued by the Court on March 22, 1990 is made permanent.
SO ORDERED.
VACANCY
COSTIN VS QUIMBO
G.R. No. L-32271 January 27, 1983
MARCIAL COSTIN, ESTANISLAO LAJER, LIONEL KANEN as Chief of Police;
FRANCISCO TISADO, OCTAVIO TRAYA as Municipal Mayor; DOMINGO IPONG as
Municipal Treasurer; and THE MUNICIPAL COUNCIL OF ABUYOG, LEYTE,
petitioners, vs. HONORABLE LOPE C. QUIMBO, Judge of the Court of First Instance of
Leyte, and HIGINIO VERRA, respondents.
GUTIERREZ, JR., J .:
In this petition for review, the petitioners seek the annulment or reversal of the decision of the
Court of First Instance of Leyte in Civil Case No. 3606, entitled Higinio Verra v. Marcial Costin
et al. In that case for a writ of quo warranto with mandamus, the respondent court declared Verra
entitled to reinstatement with payment of salaries for the whole period from his illegal separation
from the service to the date of his reinstatement.
Petitioner Estanislao Lajer was a member of the municipal police force of Abuyog, Leyte since
January 1, 1949. He was extended a promotional appointment as sergeant of police on October
15, 1958. On November 25, 1959, the outgoing municipal mayor of Abuyog accorded Lajer
another promotional appointment as chief of police. This last appointment was not attested and
approved as required by law.
On January 14, 1960, the new municipal mayor dismissed Lajer and eight other members of the
police department. On the same day, the municipal mayor extended to respondent Higinio Verra
a permanent appointment as Chief of Police of Abuyog with a salary of P2,280.00 per annum.
Verra immediately took over the position. His appointment was eventually approved as
permanent under Section 24 (b) of Republic Act 2260 by the Commissioner of Civil Service.
On January 19, 1960, Lajer and the eight members of the police force filed an action for
mandamus (Civil Case No. 2713) against the municipal mayor, municipal treasurer and the
municipal council of Abuyog, contesting their separation from the service.
While this petition for mandamus was pending, there was again a change in the municipal
administration of Abuyog, Leyte as a result of the 1963 local elections. The newly elected
municipal mayor dismissed respondent Verra from office on January 16, 1964. Verra was
replaced by Victoriano Silleza officer-in-charge, on January 17, 1964 until October, 1964 when
petitioner Marcial Costin was appointed chief of police.
On December 29, 1964, respondent Verra filed Civil Case No. 3606 for quo warranto with
mandamus against Marcial Costin the municipal mayor, and the municipal treasurer, questioning
the legality of his separation alleging that he could not be dismissed as chief of police because he
was a civil service eligible and in possession of an appointment to the position of chief of police
of Abuyog, Leyte duly attested "Permanent" by the Civil Service Commission.
On January 22, 1966, the mandamus suit (Civil Case No. 2713) filed by Lajer and his
companions, which had been appealed was decided by the Court of Appeals CA-G.R. No.
29313-R). The appellate court found that Lajer ,Tomines and Jervoso "were illegally removed
from office and are, the afore entitled to reinstatement to their respective positions with payment
of the salaries they failed o receive. "
As a result of the appellate decision, petitioner (then mayor) Tisado reinstated Lajer as chief of
police on April 1, 1966.
On July 24, 1966, respondent Verra amended his petition in Civil Case No. 3606, impleading
Lajer as additional respondent therein.
On November 7, 1968, respondent Verra filed a second amended petition including as
respondents the following: Octavio Traya, who succeeded Tisado as mayor; Lionel Kanen who
succeeded Lajer as chief of police Lajer retired from the service on February 1, 1968); Domingo
Ipong who succeeded Cuyno (deceased) as municipal treasurer; and the Municipal Council of
Abuyog, which appropriates funds for the office in question.
On December 2, 1969, respondent judge rendered his decision in Civil Case No. 3606, declaring
that Verra is entitled to reinstatement with salary to be paid to him for the Whole period of his
illegal separation to the date of his reinstatement. The court also ordered the municipal mayor to
reinstate Verra immediately and the municipal treasurer to pay his salary. This decision is now
before us for review.
Hence, the present petition with the following assignments of errors:
I. THAT THE HONORABLE COURT A QUO ERRED IN DECLARING THAT
THE COURT OF APPEALS IN ITS DECISION ON CIVIL CASE C.A.-G.R.
NO. 29313-R (Civil Case No. 2713), CFI, LEYTE) ORDERED THE
REINSTATEMENT OF PETITIONER ESTANISLAO LAJER TO THE
POSITION OF SERGEANT OF POLICE OF ABUYOG, LEYTE AND NOT TO
THE POSITION OF CHIEF OF POLICE;
II. THAT THE HONORABLE COURT A QUO ERRED IN NOT DECLARING
THAT THERE WAS NO VACANCY IN THE OFFICE OF CHIEF OF POLICE
OF ABUYOG, LEYTE TO WHICH RESPONDENT HIGINIO VERRA COULD
HAVE BEEN VALIDLY AND EFFECTIVELY APPOINTED;
III. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING THAT
THE ISSUE INVOLVED IN THIS CASE IS THE LEGALITY OF
RESPONDENT HIGINIO VERRAS REMOVAL FROM THE SERVICE AS
CHIEF OF POLICE AND NOT THE VALIDITY OF HIS APPOINTMENT
THERETO;
IV. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING THAT
THE SEPARATION OF RESPONDENT HIGINIO VERRA FROM THE
OFFICE OF THE CHIEF OF POLICE WAS ILLEGAL;
V. THAT THE HONORABLE COURT A QUO ERRED IN HOLDING THAT
RESPONDENT HIGINIO VERRA NOT BEING A PARTY IN CIVIL CASE
NO. 2713 CFI LEYTE) FOR MANDAMUS, IS NOT BOUND BY ITS
DECISION THEREON;
VI. THAT, FINALLY, THE HONORABLE COURT A QUO ERRED IN
ORDERING THE REINSTATEMENT OF OFT MENTIONED HIGINIO
VERRA TO THE POSITION OF CHIEF OF POLICE.
The foregoing assignments of errors may be narrowed down to the following issues:
1. Whether or not the appointment of respondent Higinio Verra to the position of
Chief of Police of Abuyog, Leyte, was valid and consequently his removal
therefrom illegal.
2. Whether the Court of Appeals in its decision in C.A.-G.R. No. 29313-R (Civil
Case No. 2713-CFI, Leyte) ordered the reinstatement of petitioner Lajer to the
position of Sergeant of Police or Chief of Police.
3. Whether or not respondent Verra is bound by the decision of the lower court in
Case No. 2713-CFI, Leyte, for mandamus, not being a party to it.
With respect to the first issue, the petitioners argue that the appointment issued in favor of
respondent Verra as chief of police on January 14, 1960, was invalid and ineffective because the
said position was not vacant from the time Lajer was illegally separated on January 14, 1960, up
to the time he was actually reinstated. This is, according to the petitioners, premised on the fact
that the Court of Appeals in deciding Civil Case No. 2713, CFI- Leyte, ordered Lajers
reinstatement which also legalized the dismissal of respondent Verra.
Respondent Verra on the other hand, contends that the office in question was legally vacant
when he was appointed thereto because Lajers appointment was never attested as required by law
or incomplete, and, therefore, never became effective. It is further contended that Lajers
appointment as chief of police was temporary in character and terminable at the pleasure of the
appointing authority and when Lajer was separated from the office of chief of police, the position
became legally and physically vacant. Verra also claims that since he is a civil service eligible
and his appointment as chief of police was attested as permanent under Section 20 of Republic
Act 2260 and served as such for four (4) years and two (2) days when he was dismissed without
cause, his dismissal is illegal.
We find the petition meritorious.
When respondent Verra was appointed chief of police on January 14, 1960, Lajer had just been
dismissed from office with several other members of the police force. The validity of Verras
appointment, therefore, hinges on the legality of Lajers removal. It is elementary in the law of
public officers that no person, no matter how qualified and eligible he is for a certain position
may be appointed to an office which is not vacant. There can be no appointment to a non-vacant
position. The incumbent must first be legally removed or his appoint. ment validly terminated.
The lower court's error lies in its looking at the issues primarily from the viewpoint of Verras
removal, his qualifications and eligibility for the position, and whether or not his dismissal was
valid. In the process, the lower court overlooked the fact that Verra could not have been
permanently appointed to the contested position because no less than the Court of Appeals had
declared that his predecessor, Estanislao Lajer was illegally terminated from office and must be
reinstated to his former position.
Respondent Verra argues that Lajers appointment as chief of police was temporary and
terminable at the pleasure of the appointing power.
The private respondent is correct in asserting that when the promotional appointment of Lajer
was made in 1959, it could not be considered final or complete. Under Section 2(a) of Rule VI,
the Civil Service Rules implementing Section 16(g) of Republic Act 2260, an appointment
extended by an officer duly empowered to make it is not final and complete until after the
Commissioner of Civil Service has certified that such an appointment may be made. (Gorospe v.
Secretary of Public Works and Communications et al. 105 Phil. 129L)
It is likewise true that under Section 20 of Republic Act 2260 which, in part, provides:
SEC. 20. Delegation in the Civil Service Commission and to the Agencies. -...
Appointments by ... municipal mayors shall become effective upon issuance of
such appointments and upon attestation by the provincial treasurer in the case of
appointments made by ... municipal mayors ... . All appointments made by the ...
municipal mayors ... shall, after being attested to by the respective provincial
treasurer ... be forwarded within ten days to the Commissioner of Civil Service for
review pursuant to Civil Service law and rules. If within one hundred eighty days
after receipt of said appointments, the Commissioner of Civil Service shall not
have made any correction or revision, then such appointments shall be deemed to
have been properly made. ...
the attestation by the provincial treasurer of Leyte was necessary to make the appointment of
petitioner Lajer effective.* However, these requirements could not be complied with because
Lajer who had been appointed on November 25, 1959 was replaced on January 14, 1960 by the
new mayor of the municipality who appointed Verra in his stead As pointed out in Dichoso v.
Valdepenas (5 SCRA 1069, 1076), the incoming mayor should have awaited the action of the
provincial treasurer and later, the Commissioner of Civil Service, before appointing his own
protege to a position with an incumbent occupying it. Respondent Verra cannot rely on the
absence of an attestation from the provincial treasurer and a certification from the Civil Service
Commissioner insofar as Lajers appointment is concerned because by the fact of Verras
appointment, these requirements could no longer be fulfilled. Mayor Octavio Traya took the
appointments away from the office of the Provincial Treasurer before they could be acted upon.
The Commissioner could no longer act within 180 days.
The insuperable factor, however, which stands in the way of Verras reinstatement with
backwages for eighteen (18) years from 1964 to the present is the Court of Appeals decision in
Lajer et al. v. Traya et al. (CA- G.R. No. 29313-R, January 22, 1966). The Court of Appeals was
presented squarely with the issue of whether or not Estanislao Lajer and seven other petitioners
were illegally separated from the service by Mayor Octavio Traya In a decision penned by
Justice Salvador V. Esguerra, concurred in by Presiding Justice Conrado V. Sanchez and Justice
Magno S. Gatmaitan, the First Division of the Court of Appeals ruled that Estanislao Lajer
Mariano Tomines, and Melecio Jervoso were illegally removed from office and must be
reinstated.
Respondent's Verra now contends that Lajer was ordered reinstated to the position of sergeant
and not chief of police. Mr. Verra cannot read into a Court of Appeals decision something which
is not there.
Mr. Lajer did not go to court to contest the position of police sergeant or to question his removal
as police sergeant, He was never removed from a position as sergeant of police, Lajer filed a
petition for mandamus to be reinstated as chief of police. The January 30, 1961 decision of Judge
S. C. Moscoso of tile Court of First Instance of Leyte discusses an appointment as chief of police.
When the decision ordering Lajers reinstatement, was appealed to the Court of Appeals, the
appellate court specifically described petitioner Lajer as chief of police and petitioner Mariano
Tomines as police sergeant. When Lajer and Tontines were ordered reinstated, it was to the said
positions as chief of police and police sergeant respectively.
The argument of respondent, Verra that Mayor Tisado should have refrained from reinstating
Lajer as chief of police notwithstanding the decision of the Court of Appeals because he, Verra
had filed a case with the Court of First Instance contesting the same position betrays a lack of
understanding of a final and executory decision of an appellate tribunal. The decision of the
Court of Appeals superseded any decision that the Court of First Instance or the Civil Service
Commissioner could have rendered on the same issue and the same facts. It was precisely the
termination of Lajers promotional appointment as chief of police which the appellate court struck
down. Since Lajer was not validly terminated from public office and, as a matter of fact, was
ordered reinstated through a warrant of mandamus, it follows that there was no vacancy in the
office of chief of police on January 14, 1960 and there was no office to which Higinio Verra
could have been appointed. The discussions in the decision of the respondent judge on whether
or not Higinio Vera was validly removed from office are all beside the point. Never having been
validly appointed, there was no office from which he was -illegally dismissed. At most, he was a
de facto officer during the years when Lajer was litigating his action for reinstatement in the
court of first instance and in the court of appeals. And as earlier stated, the certification by the
Commissioner of Civil Service that Mr. Verra possessed the qualifications and the eligibility,
doubtful though the latter may be, for the position of chief of police could not have made the
proceedings. in court moot and academic much less rendered inutile the 1966 decision of the
Court of Appeals granting the petition for a writ of mandamus in Lajers favor.
Moreover, the equities of the case do not lean towards respondent Verra Estanislao Lajer had
been a member of the Abuyog police force since January 1, 1949. He had passed the patrolman's
examination, was promoted to corporal, later to sergeant, and finally to chief of police in his
tenth year of service. On the other hand, Higinio Verra was a school teacher with apparently no
police experience whatsoever when he was appointed chief of police on January 14, 1960. It is
too late in the day now to debate the correctness of the Court of Appeals decision that non-
attestation was not sufficient cause for outright removal. The decision has long been final and
was implemented in 1966. There is similarly no point in resolving the issue as to who has better
qualifications and more nearly appropriate eligibility for the position of chief of police a police
sergeant with ten years experience and patrolman's eligibility or a school teacher with a senior
teacher's eligibility.
Verra asks if he should be bound by the decision of the Court of Appeals, not having been a
party to the case. The issue before the Court of First Instance and the Court of Appeals was
whether or not the Mayor, Municipal council, Municipal Treasurer, and the Municipality of
Abuyog, Leyte illegally terminated the chief of police. sergeant of police, and six other members
of the, police force from their respective offices and whether or lot mandamus may issue to
compel their reinstatement. mandamus having issued, any person whether Mr. Higinio Verra or
any other appointee to the contested position must give up the office in favor of the officer
adjudged by the courts to be entitled to it.
WHEREFORE, the instant petition is hereby granted. The decision of the respondent court in
Civil Case No. 3606 is reversed and set aside and the petition for quo warranto with mandamus
filed in the court a quo is ordered dismissed.
SO ORDERED.
GAYATAO VS CSC
G.R. No. 93064 June 22, 1992
AGUSTINA G. GAYATAO, petitioner, vs. CIVIL SERVICE COMMISSION and
BAYANI I. FERNANDEZ, respondents.
REGALADO, J .:p
This special civil action for certiorari impugns the resolution promulgated on October 5, 1989 in
CSC Case No. 418 of respondent Civil Service Commission revoking the appointment of
petitioner as Customs Operations Chief of the Export Division at the Ninoy Aquino International
Airport and directing the Commissioner of Customs to appoint private respondent in her stead, as
well as its resolution of April 10, 1990 denying petitioner motion for reconsideration.
Private respondent Bayani I. Fernandez was holding the position of Customs Operations Chief I
(COC) in the Bureau of Customs since March 5, 1984 in a permanent capacity. 1 He was
assigned to the aircraft Operations Division. On October 15, 1987, per Customs Personnel Order
(CPO) No. C-152-87 issued by Commissioner Salvador M. Mison, he was reassigned as Acting
Chief of the Export Division at the Ninoy Aquino International Airport (NAIA) Customhouse.
2

On February 15, 1988, Commission Mison, purportedly acting pursuant to Executive Order No.
127 implementing the reorganization of the Department of Finance, Bureau of Customs,
appointed petitioner Agustina G Gayatao, then a Supervising Customs Trade Examiner, to the
position of Customs Operations Chief at the NAIA Customhouse, effective March 1, 1988
3

Thereafter, in CPO No. B-27-88 dated March 3, 1988, petitioner was designated as COC of the
Export Division at NAIA, while private respondent was designated as Customs Operations
Assistant Chief (COAC) of the Aircraft Operations Division, both designations being effective
March 1, 1988.
4

Aggrieved by the actions of said commissioner, private respondent filed a letter of protest on
May 18,1988 before the Merit System Protection Board of respondent Civil Service Commission
(CSC) questioning the appointment of petitioner as COC and his demotion to the position of
COAC. In assailing the action of the appointing authority, private respondent alleged in
substance that (1) he was unjustifiably demoted since he had been holding the contested position
prior to the reorganization; and (2) he is more qualified than herein petitioner.
5

Commenting thereon in an undated 4th Indorsement, the Commissioner of Customs alleged that
the aforestated appointment of petitioner is "non-protestable, at having been done pursuant to
Executive Order No 127, . . .
6

On October 5, 1989, respondent commission promulgated the challenged resolution mentioned at
the start of this opinion, with the following dispositive portion:
WHEREFORE, premises considered, the appointment of appellee Atty. Gayatao
as Customs Operations Chief is hereby revoked. Accordingly, the Commissioner,
Bureau of Customs is hereby directed to appoint appellant Fernandez in her stead.

7

On October 30, 1987, petitioner filed a request for reconsideration of the questioned resolution,
8

but the same was denied by the CSC in its resolution dated April 10, 1990.
9
Disagreeing with the
aforementioned resolutions, petitioner filed the instant petition for certiorari with prayer for
preliminary injunction.
Public respondent CSC filed its comment to the petition on August 27, 1990
10
while private
respondent Fernandez did likewise on August 23, 1990
11
After some preliminary pleadings and
exchanges, on September 25, 1990 the Solicitor General filed a manifestation in lieu of comment,
recommending the grant of the petition and the annulment of the questioned resolutions of public
respondent.
In our resolution of November 6, 1990,
12
we required respondent CSC to comment on the
manifestation in lieu of comment filed by the Solicitor General, which it did on October 15, 1991

13
and subsequently amplified on October 18, 1991 with a supplemental comment .14
On November 12, 1991, we resolved to give due course to the petition, with the parties filing
their respective memoranda,
15
the last of which was filed by the Solicitor General on February
12, 1992.
The focal issue raised for resolution in this petition is whether respondent commission
committed grave abuse of discretion in revoking the appointment of petitioner and ordering the
appointment of private respondent in her place.
Petitioner takes the position that public respondent has no authority to revoke her appointment on
the ground that another person is more qualified, for that would constitute an encroachment on
the discretion vested solely in the appointing authority. In support of said contention, petitioner
cites the case of Central Bank of the Philippines, et al. vs. Civil Service Commission, et al.,
16

where we ruled that under the Civil Service Decree (Presidential Decree No. 807), the authority
of the CSC is limited to approving or renewing an appointment in the light of the requisites of
the law governing the civil service. The CSC has no authority to revoke an appointment on the
ground that another person is more qualified for a particular position. It will be in excess of its
power if it substitutes its will for that of the appointing authority. The CSC not being the
"appointing power" in contemplation of law, cannot direct the appointment of a substitute of its
choice
We have no quarrel with the validity of the aforesaid doctrines but we cannot sustain petitioner's
theory and submissions in this case premised on said doctrinal rules.
The doctrine laid down in he cited case finds no determinant application in the case at bar. A
reading of the questioned resolution of respondent commission readily shows that the revocation
of the appointment of petitioner was based primarily on its finding that the said appointment was
null and void by reason of the fact that it resulted in the demotion of private respondent without
lawful cause in violation of the latter's security of tenure. The advertence of the CSC to the fact
that private respondent is better qualified than petitioner was merely to lend further support to its
stand that the removal of private respondent was unlawful and tainted with bad faith and that his
reinstatement to his former position is imperative and justified.
We quote the pertinent portion of said resolution:
After a careful perusal of the records of the case, the Commission finds the appeal
meritorious, Records will show that prior to the reorganization, appellant was
already holding the position of Customs Operations Chief I since March 1984.
His reappointment to the position of Customs Operation Assistant Chief is
therefore a clear demotion of rank and position. The Commission finds no
sufficient justifiable reason for this demotion The appointing authority cannot
entirely disregard the rule on equity of the incumbent and justify demotion in the
guise of reorganization, if such demotion will amount to a penalty without
justifiable ground or will result in deprivation of due process on the part of the
employee concerned. Although the appointing authority is afforded wide latitude
in the selection and appointment of employee(s), such exercise is however not
absolute. The Supreme Court in the case of GSIS vs Ayroso (96 SCRA 213),
ruled:
While it has been held that the right to select and appoint
employees is the prerogative of the employer, this may be availed
of without liability, provided this is exercised, in the words of
Justice Juvenal K. Guerrero, in good faith for the advancement of
the employer's interest, and not for the purpose of defeating or
circumventing the rights of the employees under special laws or
under valid agreements, and provided further that such
prerogative(s) are not exercised in a malicious, harsh, oppressive,
vindictive or wanton manner, or out of malice or spite.
Finally, records will further show that appellant is more qualified than appellee
because aside from being the incumbent Customs Operations Chief prior to the
reorganization, he was an "Assistant Custom" Operations Chief since 1977. His
experience in the area of Customs Operations are more than sufficient to qualify
him for reappointment to the contested position.
17

Clearly, therefore, in the said resolution the CSC is not actually directing the appointment of
private respondent but simply ordering his reinstatement to the contested position being the first
appointee thereto. Further, private respondent was already holding said position when he was
unlawfully demoted The CSC, after finding that the demotion was patently illegal, is merely
restoring private respondent to his former position, just as it must restore other employees
similarly affected to their positions before the reorganization.
18

It is within the power of public respondent to order the reinstatement of government employees
who have been unlawfully dismissed. The CSC, as the central personnel agency, has the
obligation to implement and safeguard the constitutional provisions on security of tenure and due
process. In the present case, the issuance by the CSC of the questioned resolutions, for the
reasons clearly explained therein, is undubitably in the performance of its constitutional task of
protecting and strengthening the civil service.
In the recent case of Aquino vs. Civil Service Commission, et al.,
19
wherein similar issues were
raised, it was ruled that:
We have consistently applied the above doctrine in many cases with similar
factual circumstances, but We see no compelling reason to apply the same in the
instant case. In the cases cited above, We ruled that the CSC has no authority to
revoke an appointment simply because it (CSC) believed that another person is
better qualified than the appointee for it would constitute an encroachment on the
discretion solely vested on the appointing authority. The situation is different, as
in the instant case, where the CSC revoked the appointment of the successful
protestant, petitioner herein, principally because the right to security of tenure of
the prior appointee, private respondent herein, to the contested position had
already attached. It must be noted that public respondent CSC did not direct the
appointment of a substitute of its choice. It merely restored the appointment of
private respondent who was first appointed to the contested position.
We find no reason to disturb the findings and conclusions of the CSC that respondent Bayani I.
Fernandez was illegally demoted. As earlier noted, private respondent was holding the position
of Customs Operations Chief in a permanent capacity since 1984. His non-reappointment to that
position amounts to a removal without cause from an office which has not been abolished nor
reorganized.
As we stressed in Dario vs. Mison, et al., and its companion cases,
20
removal from office as a
result of reorganization must pass the test of good faith. Upon the effectivity of the 1987
Constitution, any reorganization undertaken by the Government must be guided and
circumscribed by the safeguards and provisions of the said Constitution and the statutes'
governing reorganization.
21

In the instant case, the guidelines and standards provided in those laws were not observed. The
position of private respondent as COC of the Export Division was not abolished with the
reorganization of the Bureau of Customs. What happened was that another person, herein
petitioner who is lower in rank, was appointed in his stead. Such fact is a clear indication of bad
faith which would entitle herein private respondent to reinstatement pursuant to Section 9 of
Republic Act No. 6656.
22

As a civil service employee with a permanent appointment, Private respondent cannot be
removed, suspended or demoted except for cause" provided by law. Private respondent's
appointment to the lower position of COAC is a clear demotion in rank without no valid cause
and without being heard thereon. A demotion in office by assigning an employee to a lower
position on the same service is tantamount to removal, if no cause is shown for it, more so, if it is
not part of any disciplinary action.
23
The observance of the rules on bona fide abolition of public
office is essential before terminations and/or demotions from employment in the government
service can be made.
24

The argument of petitioner that the questioned resolution of respondent CSC will have the effect
of her dismissal without cause from government service, since she is already an appointee to the
position which private respondent claims, is devoid of legal support and logical basis.
In the first place, petitioner cannot claim any right to the contested position. No vacancy having
legally been created by the illegal dismissal no appointment may be validly made to that position
and the new appointee has no right whatsoever to that office. She should be returned to where
she came from or to given another equivalent item.
25
No person, no matter how qualified and
eligible for a certain position, may he appointed to on office which is not yet vacant. The
incumbent must have been lawfully removed or his appointment validly terminated,
26
since an
appointment to an office which is not vacant is null and ab initio.
27

The present Constitution does not provide for automatic vacancies; removals "not for cause"
contemplated in Section 16, Article XVIII thereof must be those resulting from reorganization
and which, to repeat, must pass the test of good faith.
28

We reiterate what we said in the above-cited case of Floreza:
We apply the ruling in Dario vs. Mison and Section 2 of Republic Act 6656 to
this position. We hold that Floreza was deprived of his right to security of tenure
by his non-appointment to the position of Revenue Service Chief or its new title
under the reorganized Bureau of Internal Revenue. It should be remembered that
after February 2, 1987, any reorganization undertaken by the government is
circumscribed by the provisions and safeguards of the New Constitution. Hence,
when Floreza was not reappointed as Revenue Service Chief or as Assistant
Commissioner either in the Legal Service, or in the Planning and Research
Service, and other persons were reappointed to the positions, he was, in effect
dismissed from the service in violation not only of his right to security of tenure
but to due process as well.
xxx xxx xxx
Section 2 of Republic Act No. 6655 entitles a victim of removal in violation of the
bona fide rule to a reinstatement or reappointment to the position from which he
was removed. The fact that there is now an appointee to the position he claims,
holding an appointment signed by the President, is of no moment, There was no
vacancy in the office to which Jaime M. Masa was appointed and, therefore, his
promotion was not valid.
The argument of the Solicitor General that private respondent's assignment as COC of the Export
Division at NAIA was only in an acting capacity is unavailing. While it is true that an acting
appointment is merely temporary and revocable at the pleasure of the appointing power,
29
this
temporary appointment cannot be used by the appointing authority as an argument or
justification in order to evade or avoid the security of tenure principle in the Constitution and the
Civil Service Law.
30

Although it is true that the appointment of private respondent Fernandez as COC is without any
particular or fixed station and, generally he may be assigned anywhere as the exigencies of the
service may require,
31
nonetheless his reassignment as Acting Chief of the Export Division at
NAIA does not make his appointment as Customs Operation Chief I temporary and revocable at
the pleasure of the appointing power. He cannot be arbitrarily removed from a particular division
without reassigning him to another division nor can he be appointed to a lower position without
cause and without notice and hearing The appointing power cannot use the device of an
ambiguous designation to go around the security of tenure of a permanent employee.
32

On the foregoing consideration, private respondent must be restored to his former position as
Chief of the Export Division at NAIA without prejudice to the power of the Commissioner of
Customs to reassign him to any other division as the exigencies of the service may require,
provided this is done in good faith for the best interests of the service or for valid cause.
It is also worthy of note that the order for the reinstatement of private respondent is in
consonance with our ruling in Dario vs. Mison, ante, that there was lack of good faith in the
reorganization of the Bureau of Customs. Apropos to the present case is this trenchant
observation therein: "There is no showing that legitimate structural changes have been made
or a reorganization actually undertaken, for that matter at the Bureau since Commissioner
Mison assumed office, which would have validly prompted him to hire and fire employees.
There can therefore be no actual reorganization to speak of, in the sense, say, of reduction of
personnel, consolidation of offices, or abolition thereof by reason of economy or redundancy of
functions, but a revamp of personnel pure and simple."
33

WHEREFORE, the petition at bar is DISMISSED and the questioned resolutions of respondent
Civil Service Commission are hereby AFFIRMED.
SO ORDERED.

GARCES VS CA
G.R. No. 114795 July 17, 1996
LUCITA Q. GARCES, petitioner, vs. THE HONORABLE COURT OF APPEALS,
SALVADOR EMPEYNADO and CLAUDIO CONCEPCION, respondents.
R E S O L U T I O N
FRANCISCO, J .:p
Questioned in this petition for review is the decision
1
of the Court of Appeals
2
(CA), as well as
its resolution, which affirmed the decision of the Regional Trial Court
3
(RTC) of Zamboanga del
Norte in dismissing a petition for mandamus against a Provincial Election Supervisor and an
incumbent Election Registrar.
The undisputed facts are as follows:
Petitioner Lucita Garces was appointed Election Registrar of Gutalac, Zamboanga del Norte on
July 27, 1986. She was to replace respondent Election Registrar Claudio Concepcion who, in
turn, was transferred to Liloy, Zamboanga del Norte.
4
Correspondingly approved by the Civil
Service Commission,
5
both appointments were to take effect upon assumption of office.
Concepcion, however, refused to transfer post as he did not request for it.
6
Garces, on the other
hand, was directed by the Office of Assistant Director for Operations to assume the Gutalac post.
7
But she was not able to do so because of a Memorandum issued by respondent Provincial
Election Supervisor Salvador Empeynado that prohibited her from assuming office in Gutalac as
the same is not vacant.
8

On February 24, 1987, Garces was directed by the same Office of Assistant Director to defer her
assumption of the Gutalac post. On April 15, 1987, she received a letter from the Acting
Manager, Finance Service Department, with an enclosed check to cover for the expenses on
construction of polling booths. It was addressed "Mrs. Lucita Garces E.R. Gutalac, Zamboanga
del Norte" which Garces interpreted to mean as superseding the deferment order.
9
Meanwhile,
since respondent Concepcion continued occupying the Gutalac office, the COMELEC en banc
cancelled his appointment to Liloy.
10

On February 26, 1988, Garces filed before the RTC a petition for mandamus with preliminary
prohibitory and mandatory injunction and damages against Empeynado
11
and Concepcion,
among others. Meantime, the COMELEC en banc through a Resolution dated June 3, 1988,
resolved to recognize respondent Concepcion as the Election Registrar of Gutalac,
12
and ordered
that the appointments of Garces to Gutalac and of Concepcion to Liloy be cancelled.
13
In view
thereof, respondent Empeynado moved to dismiss the petition for mandamus alleging that the
same was rendered moot and academic by the said COMELEC Resolution, and that the case is
cognizable only by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The RTC,
thereafter, dismissed the petition for mandamus on two grounds, viz., (1) that quo warranto is the
proper remedy,
14
and (2) that the "cases" or "matters" referred under the constitution pertain
only to those involving the conduct of elections. On appeal, respondent CA affirmed the RTC's
dismissal of the case. Hence, this petition
The issues raised are purely legal. First, is petitioner's action for mandamus proper? And, second,
is this case cognizable by the RTC or by the Supreme Court?
On the first issue, Garces claims that she has a clear legal right to the Gutalac post which was
deemed vacated at the time of her appointment and qualification. Garces insists that the vacancy
was created by Section 2, Article III of the Provisional Constitution.
15
On the contrary,
Concepcion posits that he did not vacate his Gutalac post as he did not accept the transfer to
Liloy.
Article III Section 2 of the Provisional Constitution provides:
All elective and appointive officials and employees under the 1973
Constitution shall continue in the office until otherwise provided by
proclamation or executive order or upon the designation or appointment
and qualification of their successors, if such is made within a period of
one year from February 25, 1986. (Emphasis supplied).
The above organic provision did not require any cause for removal of an appointive
official under the 1973 Constitution.
16
The transition period from the old to the new
Constitution envisioned an "automatic" vacancy;
1
7 hence the government is not hard put
to prove anything plainly and simply because the Constitution allows it.
18
Mere
appointment and qualification of the successor removes an incumbent from his post.
Nevertheless, the government in an act of auto-limitation and to prevent indiscriminate
dismissal of government personnel issued on May 28, 1986, Executive Order (E.O.) No.
17. This executive order, which applies in this case as it was passed prior to the issuance
of Concepcion's transfer order, enumerates five grounds for separation or replacement of
elective and appointive officials authorized under Article III, Section 2 of the Provisional
Constitution, to wit:
1. Existence of a case for summary dismissal pursuant to Section 40 of the
Civil Service Law;
2. Existence of the probable cause for violation of the Anti-Graft and
Corrupt Practices Act as determined by the Ministry Head concerned;
3. Gross incompetence or inefficiency in the discharge of functions;
4. Misuse of public office for partisan political purposes;
5. Any other analogous ground showing that the incumbent is unfit to
remain in the service or his separation/replacement is in the interest of the
service.
Not one of these grounds was alleged to exist, much less proven by petitioner when
respondent Concepcion was transferred from Gutalac to Liloy. More, Concepcion was
transferred without his consent. A transfer requires a prior appointment.
19
If the transfer
was made without the consent of the official concerned, it is tantamount to removal
without valid cause
20
contrary to the fundamental guarantee on non-removal except for
cause.
21
Concepcion's transfer thus becomes legally infirm and without effect for he was
not validly terminated. His appointment to the Liloy post, in fact, was incomplete because
he did not accept it. Acceptance, it must be emphasized, it is indispensable to complete an
appointment.
22
Corollarily, Concepcion's post in Gutalac never became vacant. It is a
basic precept in the law of public officers that "no person, no matter how qualified and
eligible he is for a certain position may be appointed to an office which is not vacant.
23

There can be no appointment to a non-vacant position. The incumbent must first be
legally removed, or his appointment validly terminated before one could be validly
installed to succeed him. Further, Garces' appointment was ordered to be deferred by the
COMELEC. The deferment order, we note, was not unequivocably lifted. Worse, her
appointment to Gutalac was even cancelled by the COMELEC en banc.
These factors negate Garces' claim for a well-defined, clear, certain legal right to the
Gutalac post. On the contrary, her right to the said office is manifestly doubtful and
highly questionable. As correctly ruled by respondent court, mandamus, which petitioner
filed below, will not lie as this remedy applies only where petitioner's right is founded
clearly in law and not when it is doubtful.
24
It will not issue to give him something to
which he is not clearly and conclusively entitled.
25
Considering that Concepcion
continuously occupies the disputed position and exercises the corresponding functions
therefor, the proper remedy should have been quo warranto and not mandamus.
26
Quo
warranto tests the title to one's office claimed by another and has as its object the ouster
of the holder from its enjoyment, while mandamus avails to enforce clear legal duties and
not to try disputed titles.
2
7
Garces' heavy reliance with the 1964 Tulawie
28
case is misplaced for material and
different factual considerations. Unlike in this case, the disputed office of "Assistant
Provincial Agriculturist" in the case of Tulawie is clearly vacant and petitioner Tulawie's
appointment was confirmed by the higher authorities making his claim to the disputed
position clear and certain. Tulawie's petition for mandamus, moreover, was against the
Provincial Agriculturist who never claimed title to the contested office. In this case, there
was no vacancy in the Gutalac post and petitioner's appointment to which she could base
her claim was revoked making her claim uncertain.
Coming now to the second issue.
The jurisdiction of the RTC was challenged by respondent Empeynado
29
contending that
this is a "case" or "matter" cognizable by the COMELEC under Sec. 7 Art. IX-A of the
1987 Constitution. The COMELEC resolution cancelling the appointment of Garces as
Election Registrar of Gutalac, he argues, should be raised only on certiorari before the
Supreme Court and not before the RTC, else the latter court becomes a reviewer of an en
banc COMELEC resolution contrary to Sec. 7, Art. IX-A.
The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:
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.
This provision is inapplicable as there was no case or matter filed before the COMELEC.
On the contrary, it was the COMELEC's resolution that triggered this controversy. The
"case" or "matter" referred to by the constitution must be something within the
jurisdiction of the COMELEC, i.e., it must pertain to an election dispute. The settled rule
is that "decision, rulings, order" of the COMELEC that may be brought to the Supreme
Court on certiorari under Sec. 7 Art. IX-A are those that relate to the COMELEC's
exercise of its adjudicatory or quasi-judicial powers
30
involving "elective regional,
provincial, and city officials."
31
In this case, what is being assailed is the COMELEC's
choice of an appointee to occupy the Gutalac Post which is an administrative duty done
for the operational set-up of an agency.
32
The controversy involves an appointive, not an
elective, official. Hardly can this matter call for the certiorari jurisdiction of the Supreme
Court. To rule otherwise would surely burden the Court with trivial administrative
questions that are best ventilated before the RTC, a court which the law vests with the
power to exercise original jurisdiction over "all cases not within the exclusive jurisdiction
over of any court, tribunal, person or body exercising judicial or quasi-judicial
functions."
33

WHEREFORE, premises considered, the petition for review is hereby DENIED without
prejudice to the filing of the proper action with the appropriate body.

NEXT IN RANK RULE
PANIS VS CSC
G.R. No. 102948 February 2, 1994
JAIME T. PANIS, petitioner, vs. CIVIL SERVICE COMMISSION and BELLA V.
VELOSO, respondent.
QUIASON, J .:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court in relation to Section
7 of Article IX (A) of the Constitution, to nullify Resolution No. 90-1047 dated November 22,
1990 and Resolution No. 91-1100 dated September 24, 1991, of the Civil Service Commission.
The first Resolution dismissed petitioner's appeal from the decision of the Regional Office of the
Civil Service Commission, and at the same time, upheld the appointment of respondent Bella V.
Veloso to the position of Assistant Chief of Hospital for Administration of the Cebu City
Medical Center (CCMC). The second Resolution denied the motion for reconsideration of the
decision.
I.
The CCMC, formerly known as the Cebu City Hospital, is operated and maintained by the local
government of Cebu City. Petitioner was employed as Administrative Officer of the Hospital,
while private respondent was Administrative Officer of the City Health Department detailed at
the said hospital.
On November 9, 1987, the Mayor of Cebu City appointed private respondent to the position of
Assistant Chief of Hospital for Administration of CCMC. Petitioner, a candidate for the said
position, promptly protested the appointment before the Regional Office of the Civil Service
Commission (CSC). The CSC Regional Office, however, indorsed the matter to the Office of the
City Mayor, which in turn referred it to the Office of the City Attorney.
In a decision dated July 26, 1988, the City Attorney, with the approval of the City Mayor,
dismissed petitioner's protest and upheld the appointment of private respondent. This dismissal
was affirmed by the CSC Regional Office and later on appeal, by respondent CSC. Hence, the
present petition.
II.
Petitioner contends that the appointment of private respondent was made in violation of law,
existing civil service rules and established jurisprudence because (1) the position of Assistant
Chief of Hospital for Administration was not legally created; (2) assuming that it was, there was
no qualification standard nor valid screening procedure; and (3) the seniority and next-in-rank
rules were disregarded.
III.
The petition is not impressed with merit.
Ordinance No. 1216, passed by the Cebu City Sangguniang Panglunsod on June 17, 1986,
amended the charter of the Cebu City Hospital for the purpose of correcting the deficiencies and
improving the performance of said institution. The hospital's name was changed to CCMC, and
the departments and offices therein were reorganized. The Office of Hospital Administrator was
created and granted such powers as were deemed in line with the objectives of the Ordinance.
On March 6, 1987, the City Mayor appointed private respondent to the position of Hospital
Administrator. This appointment was, however, not acted upon by the CSC but returned to the
appointing authority on October 21, 1987 for lack of the screening requirement. On even date,
the City Mayor withdrew private respondent's appointment. The title of Hospital Administrator
was later found to be a misnomer and thus was properly classified by the Joint Commission on
Local Government Personnel Administration as one of Assistant Chief of Hospital for
Administration. This classification was subsequently approved by the Department of Budget
Management.
The position of Assistant Chief of Hospital for Administration is the very same position of
Hospital Administrator created by Ordinance No. 1216. The Office of Hospital Administrator
was not extinguished, but the designation thereof merely corrected to reflect the proper
classification of the position under existing rules (Rollo, pp. 78-80). The Office of Assistant
Chief of Hospital for Administration therefore was created and existed in accordance with law.
As a result of the reclassification, candidates to the position, among whom were petitioner and
private respondent, were notified by the Personnel Selection Board (Board) of the screening
scheduled on October 22, 1987. The notice sent petitioner at 9:30 A.M. may have been "too
close for comfort to the 10:00 schedule," but the screening was actually reset to the following
day, October 23, 1987. Petitioner however never appeared before the Board. Neither did he
appear, despite due notice, at the final selection process on November 5, 1987.
The fact that private respondent was actually screened and interviewed by the Board does not
mean that her appointment was a fait accompli. The screening was just a stage in the
appointment process.
Private respondent and petitioner are college degree holders with three units in Public
Administration and three years experience in Hospital Administration or Health Administration.
Indeed, both candidates possess the minimum qualifications for the position. The determination,
however, who among the qualified candidates should be preferred belongs to the appointing
authority. The Mayor of Cebu City, in the instant case, chose to appoint private respondent.
The argument that petitioner should have been the one appointed because he was next in rank to
the contested position and that he had been with CCMC since 1961 as compared to private
respondent, who joined the hospital in 1986 and only on detail, cannot be upheld.
It is ironic that petitioner is personally interested in the subject position, the creation and validity
of which he himself originally questioned. Be that as it may, the "next in rank" rule specifically
applies only in cases of promotion (Medenilla v. Civil Service Commission, 194 SCRA 278
[1991]; Pineda v. Claudio, 28 SCRA 34 [1969]). The instant controversy, however, involves a
new office and a position created in the course of a valid reorganization. Under the law, a
vacancy not filled by promotion may be filled by transfer of present employees in the
government service, by reinstatement, by reemployment of those separated from the service, and
appointment of outsiders who have appropriate civil service eligibility, but not necessarily in this
order (P.D. 807 Art. VIII, Sec. 19 (5); E.O. 292, Bk. V, Sec. 21 (5); Espaol v. Civil Service
Commission, 206 SCRA 715 [1992]; Medenilla v. Civil Service Commission, supra., at 289-
290).
It cannot be said that private respondent was an outsider. Although directly employed by the City
Health Department, she actually worked at the CCMC prior to her appointment to the subject
position. Besides, even, if she was an outsider, the law does not prohibit the employment of
persons from the private sector so long as they have the appropriate civil service eligibility.
Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion,
the concept of "next in rank" does not impose any mandatory or peremptory requirement to
appoint the person occupying the next lower position in the occupational group of the office.
What the Civil Service Law and the Administrative Code of 1987 provide is that if a vacancy is
filled up by the promotion, the person holding the position next in rank thereto "shall be
considered for promotion" (P.D. 807, Sec. 19 (3); E.O. 292, Bk. V, Sec. 20 (3); Espaol v. Civil
Service Commission, supra; Barrozo v. Civil Service Commission, 198 SCRA 487 [1991]). In
other words, one who is "next in rank" to a vacancy is given preferential consideration for
promotion to the vacant position, but it does nor necessarily follow that he alone and no one else
can be appointed. There is no vested right granted the next in rank nor a ministerial duty imposed
on the appointing authority to promote the holder to the vacant position (Barrozo v. Civil Service
Commission, supra; Santiago, Jr. v. Civil Service Commission, 178 SCRA 733 [1989]).
An appointment, whether to a vacancy or to a newly created position, is essentially within the
discretionary power of whomsoever it is vested. Once a candidate possesses the minimum
qualities required by law, sufficient discretion, if not plenary, is granted to the appointing
authority (Medenilla v. Civil Service Commission, supra, at 291; Central Bank v. Civil Service
Commission, 171 SCRA 744 [1989]). After all, the appointing authority is the officer primarily
responsible for the administration of the office, and is likewise in the best position to determine
who among the qualified candidates can efficiently discharge the functions of the position
(Villegas v. Subido, 30 SCRA 498 [1969]); Reyes v. Abeleda, 22 SCRA 825 [1968]). Indeed,
whom to appoint among those qualified is an administrative question involving considerations of
wisdom for the best interest of the service which only the appointing authority can decide
(Simpao v. Civil Service Commission, 191 SCRA 396 [1990]; Luego v. Civil Service
Commission, 143 SCRA 327 [1986]).
It is markworthy that private respondent was detailed at the CCMC primarily to help in
upgrading the level of performance of the said hospital. She accomplished this mission by
institutionalizing changes in the management and financial reporting system of the hospital such
that its income doubled in less than two years since her detail. Private respondent's competence
and her remarkable achievement are things the appointing authority took notice of and which
served as basis for her appointment to the contested position.
Finally, the moral character and honesty of private respondent are issues that should be threshed
out in an appropriate action before the proper forum. As it stands, private respondent is presumed
innocent and her acts done in good faith, until proven otherwise.
WHEREFORE, finding no grave abuse of discretion on the part of the public respondent, the
Court resolved to DISMISS the petition for lack of merit.
SO ORDERED.

\



DISCRETIONARY FUNCTION
LUEGO VS CSC
G.R. NO. L-69137 August 5, 1986
FELIMON LUEGO, petitioner-appellant, vs. CIVIL SERVICE COMMISSION and
FELICULA TUOZO, respondents-appellees.
CRUZ, J .:
Stripped of irrelevant details and impertinent incidents that have cluttered the voluminous record,
the facts of this case may be briefly narrated as follows:
The petitioner was appointed Administrative Officer 11, Office of the City Mayor, Cebu City, by
Mayor Florentino Solon on February 18, 1983.
1
The appointment was described as permanent"
but the Civil Service Commission approved it as "temporary," subject to the final action taken in
the protest filed by the private respondent and another employee, and provided "there (was) no
pending administrative case against the appointee, no pending protest against the appointment
nor any decision by competent authority that will adversely affect the approval of the
appointment."
2
On March 22, 1984, after protracted hearings the legality of which does not have
to be decided here, the Civil Service Commission found the private respondent better qualified
than the petitioner for the contested position and, accordingly, directed "that Felicula Tuozo be
appointed to the position of Administrative Officer 11 in the Administrative Division, Cebu City,
in place of Felimon Luego whose appointment as Administrative Officer II is hereby revoked."
3

The private respondent was so appointed on June 28, 1984, by the new mayor, Mayor Ronald
Duterte.
4
The petitioner, invoking his earlier permanent appointment, is now before us to
question that order and the private respondent's title.
The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a
permanent appointment on the ground that another person is better qualified than the appointee
and, on the basis of this finding, order his replacement by the latter?
The Solicitor General, rather than face the question squarely, says the petitioner could be validly
replaced in the instant case because his appointment was temporary and therefore could be
withdrawn at will, with or without cause. Having accepted such an appointment, it is argued, the
petitioner waived his security of tenure and consequently ran the risk of an abrupt separation
from his office without violation of the Constitution.
5

While the principle is correct, and we have applied it many times,
6
it is not correctly applied in
this case. The argument begs the question. The appointment of the petitioner was not temporary
but permanent and was therefore protected by Constitution. The appointing authority indicated
that it was permanent, as he had the right to do so, and it was not for the respondent Civil Service
Commission to reverse him and call it temporary.
The stamping of the words "APPROVED as TEMPORARY" did not change the character of the
appointment, which was clearly described as "Permanent" in the space provided for in Civil
Service Form No. 33, dated February 18, 1983.
7
What was temporary was the approval of the
appointment, not the appointment it sell And what made the approval temporary was the fact that
it was made to depend on the condition specified therein and on the verification of the
qualifications of the appointee to the position.
The Civil Service Commission is not empowered to determine the kind or nature of the
appointment extended by the appointing officer, its authority being limited to approving or
reviewing the appointment in the light of the requirements of the Civil Service Law. When the
appointee is qualified and authorizing the other legal requirements are satisfied, the Commission
has no choice but to attest to the appointment in accordance with the Civil Service Laws.
As Justice Ramon C. Fernandez declared in an earlier case:
It is well settled that the determination of the kind of appointment to be extended
lies in the official vested by law with the appointing power and not the Civil
Service Commission. The Commissioner of Civil Service is not empowered to
determine the kind or nature of the appointment extended by the appointing
officer. When the appointee is qualified, as in this case, the Commissioner of
Civil Service has no choice but to attest to the appointment. Under the Civil
Service Law, Presidential Decree No. 807, the Commissioner is not authorized to
curtail the discretion of the appointing official on the nature or kind of the
appointment to be extended.
8

Indeed, the approval is more appropriately called an attestation, that is, of the fact that the
appointee is qualified for the position to which he has been named. As we have repeatedly held,
such attestation is required of the Commissioner of Civil Service merely as a check to assure
compliance with Civil Service Laws.
9

Appointment is an essentially discretionary power and must be performed by the officer in which
it is vested according to his best lights, the only condition being that the appointee should
possess the qualifications required by law. If he does, then the appointment cannot be faulted on
the ground that there are others better qualified who should have been preferred. This is a
political question involving considerations of wisdom which only the appointing authority can
decide.
It is different where the Constitution or the law subjects the appointment to the approval of
another officer or body, like the Commission on Appointments under 1935 Constitution.
10

Appointments made by the President of the Philippines had to be confirmed by that body and
could not be issued or were invalidated without such confirmation. In fact, confirmation by the
Commission on Appointments was then considered part of the appointing process, which was
held complete only after such confirmation.
11

Moreover, the Commission on Appointments could review the wisdom of the appointment and
had the power to refuse to concur with it even if the President's choice possessed all the
qualifications prescribed by law. No similar arrangement is provided for in the Civil Service
Decree. On the contrary, the Civil Service Commission is limited only to the non-discretionary
authority of determining whether or not the person appointed meets all the required conditions
laid down by the law.
It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of
the Civil Service Decree because it says the Commission has the power to "approve" and
"disapprove" appointments. Thus, it is provided therein that the Commission shag have inter alia
the power to:
9(h) Approve all appointments, whether original or promotional to positions in
the civil service, except those presidential appointees, members of the Armed
Forces of the Philippines, police forces, firemen, and jailguards, and disapprove
those where the appointees do not possess appropriate eligibility or required
qualifications. (emphasis supplied)
However, a full reading of the provision, especially of the underscored parts, will make it clear
that all the Commission is actually allowed to do is check whether or not the appointee possesses
the appropriate civil service eligibility or the required qualifications. If he does, his appointment
is approved; if not, it is disapproved. No other criterion is permitted by law to be employed by
the Commission when it acts on--or as the Decree says, "approves" or "disapproves" an
appointment made by the proper authorities.
Significantly, the Commission on Civil Service acknowledged that both the petitioner and the
private respondent were qualified for the position in controversy.
12
That recognition alone
rendered it functus officio in the case and prevented it from acting further thereon except to
affirm the validity of the petitioner's appointment. To be sure, it had no authority to revoke the
said appointment simply because it believed that the private respondent was better qualified for
that would have constituted an encroachment on the discretion vested solely in the city mayor.
In preferring the private respondent to the petitioner, the Commission was probably applying its
own Rule V, Section 9, of Civil Service Rules on Personnel Actions and Policies, which provides
that "whenever there are two or more employees who are next-in-rank, preference shall be given
to the employee who is most competent and qualified and who has the appropriate civil service
eligibility." This rule is inapplicable, however, because neither of the claimants is next in rank.
Moreover, the next-in-rank rule is not absolute as the Civil Service Decree allows vacancies to
be filled by transfer of present employees, reinstatement, re-employment, or appointment of
outsiders who have the appropriate eligibility.
13

There are apparently no political overtones in this case, which looks to be an honest contention
between two public functionaries who each sincerely claims to be entitled to the position in
dispute. This is gratifying for politics should never be permitted to interfere in the apolitical
organization of the Civil Service, which is supposed to serve all the people regardless of partisan
considerations. This political detachment will be impaired if the security of tenure clause in the
Constitution is emasculated and appointments in the Civil Service are revoked and changed at
will to suit the motivations and even the fancies of whatever party may be in power.
WHEREFORE, the resolution of the respondent Commission on Civil Service dated March 22,
1984, is set aside, and the petitioner is hereby declared to be entitled to the office in dispute by
virtue of his permanent appointment thereto dated February 18, 1983. No costs.
SO ORDERED.

ANZALDO VS CLAVE
G.R. No. L-54597 December 15, 1982
FELICIDAD ANZALDO, petitioner, vs. JACOBO C. CLAVE as Chairman of the Civil
Service Commission and as Presidential Executive Assistant; JOSE A. R. MELO, as
Commissioner of the Civil Service Commission, and EULALIA L. VENZON, respondents.
AQUINO, J .:
This is a controversy over the position of Science Research Supervisor II, whose occupant heads
the Medical Research Department in the Biological Research Center of the National Institute of
Science and Technology (NIST).
Doctor Felicidad Estores-Anzaldo 55, seeks to annul the decision of Presidential Executive
Assistant Jacobo C. Clave dated March 20, 1980, revoking her appointment dated January 5,
1978 as Science Research Supervisor II and directing the appointment to that position of Doctor
Eulalia L. Venzon, 48.
The contested position became vacant in 1974 when its incumbent, Doctor Quintin Kintanar,
became Director of the Biological Research Center. Doctor Kintanar recommended that Doctor
Venzon be appointed to that position. Doctor Anzaldo protested against that recommendation.
The NIST Reorganization Committee found her protest to be valid and meritorious (p. 34, Rollo).
Because of that impasse, which the NIST Commissioner did not resolve, the position was not
filled up.
At the time the vacancy occurred, or on June 30, 1974, both Doctors Anzaldo and Venzon were
holding similar positions in the Medical Research Department: that of Scientist Research
Associate IV with an annual compensation of P12,013 per annum. Both were next-in-rank to the
vacant position.
Later, Doctor Pedro G. Afable, Vice-Chairman, became the Officer-in-Charge of the NIST.
Effective January 5, 1978, he appointed Doctor Anzaldo to the contested position with
compensation at P18,384 per annum. The appointment was approved by the Civil Service
Commission.
Doctor Afable, in his letter dated January 20, 1978, explained that the appointment was made
after a thorough study and screening of the qualifications of Doctors Anzaldo and Venzon and
upon the recommendation of the NIST Staff Evaluation Committee that gave 88 points to Doctor
Anzaldo and 61 points to Doctor Venzon (p. 78, Rollo).
Doctor Venzon in a letter dated January 23, 1978, addressed to Jacobo C. Clave, appealed to the
Office of the President of the Philippines (pp. 139-40). The appeal was forwarded to the NIST
Anzaldo to the contested position (p. 63, Rollo). The appeal-protest was later sent to the Civil
Service Commission.
Chairman Clave of the Civil Service Commission and Commissioner Jose A. R. Melo
recommended in Resolution No. 1178 dated August 23, 1979 that Doctor Venzon be appointed
to the contested position, a recommendation which is in conflict with the 1978 appointment of
Doctor Anzaldo which was duly attested and approved by the Civil Service Commission (pp. 30
and 48, Rollo).
The resolution was made pursuant to section 19(6) of the Civil Service Decree of the Philippines,
Presidential Decree No. 807 (which took effect on October 6, 1975) and which provides that
"before deciding a contested appointment, the Office of the President shall consult the Civil
Service Commission."
After the denial of her motion for the reconsideration of that resolution, or on January 5, 1980,
Doctor Anzaldo appealed to the Office of the President of the Philippines. As stated earlier,
Presidential Executive Assistant Clave (who was concurrently Chairman of the Civil Service
Commission) in his decision of March 20, 1980 revoked Doctor Anzaldo's appointment and
ruled that, "as recommended by the Civil Service Commission" (meaning Chairman Clave
himself and Commissioner Melo), Doctor Venzon should be appointed to the contested position
but that Doctor Anzaldo's appointment to the said position should be considered "valid and
effective during the pendency" of Doctor Venzon's protest (p. 36, Rollo).
In a resolution dated August 14, 1980, Presidential Executive Assistant Clave denied Doctor
Anzaldo's motion for reconsideration. On August 25, 1980, she filed in this Court the instant
special civil action of certiorari.
What is manifestly anomalous and questionable about that decision of Presidential Executive
Assistant Clave is that it is an implementation of Resolution No. 1178 dated August 23, 1979
signed by Jacobo C. Clave, as Chairman of the Civil Service Commission and concurred in by
Commissioner Jose A. Melo.
In that resolution, Commissioner Clave and Melo, acting for the Civil Service Commission,
recommended that Doctor Venzon be appointed Science Research Supervisor II in place of
Doctor Anzaldo.
When Presidential Executive Assistant Clave said in his decision that he was "inclined to concur
in the recommendation of the Civil Service Commission", what he meant was that he was
concurring with Chairman Clave's recommendation: he was concurring with himself (p. 35,
Rollo).
It is evident that Doctor Anzaldo was denied due process of law when Presidential Executive
Assistant Clave concurred with the recommendation of Chairman Clave of the Civil Service
Commission. The case is analogous to Zambales Chromite Mining Co. vs. Court of Appeals, L-
49711, November 7, 1979, 94 SCRA 261, where it was held that the decision of Secretary of
Agriculture and Natural Resources Benjamin M. Gozon, affirming his own decision in a mining
case as Director of Mines was void because it was rendered with grave abuse of discretion and
was a mockery of administrative justice.
Due process of law means fundamental fairness. It is not fair to Doctor Anzaldo that Presidential
Executive Assistant Clave should decide whether his own recommendation as Chairman of the
Civil Service Commission, as to who between Doctor Anzaldo and Doctor Venzon should be
appointed Science Research Supervisor II, should be adopted by the President of the Philippines.
Common sense and propriety dictate that the commissioner in the Civil Service Commission,
who should be consulted by the Office of the President, should be a person different from the
person in the Office of the President who would decide the appeal of the protestant in a contested
appointment.
In this case, the person who acted for the Office of the President is the same person in the Civil
Service Commission who was consulted by the Office of the President: Jacobo C. Clave. The
Civil Service Decree could not have contemplated that absurd situation for, as held in the
Zambales Chromite case, that would not be fair to the appellant.
We hold that respondent Clave committed a grave abuse of discretion in deciding the appeal in
favor of Doctor Venzon. The appointing authority, Doctor Afable, acted in accordance with law
and properly exercised his discretion in appointing Doctor Anzaldo to the contested position.
Doctor Anzaldo finished the pharmacy course in 1950 in the College of Pharmacy, University of
the Philippines. She obtained from the Centro Escolar University the degree of Master of Science
in Pharmacy in 1962 and in 1965 the degree of Doctor of Pharmacy.
Aside from her civil service eligibility as a pharmacist, she is a registered medical technologist
and supervisor (unassembled).
She started working in the NIST in 1954 and has served in that agency for about twenty-eight (28)
years now. As already stated, in January, 1978, she was appointed to the contested Position of
Science Research Supervisor II. Her present salary as Science Research Supervisor II, now
known as Senior Science Research Specialist, is P 30,624 per annum after she was given a merit
increase by Doctor Kintanar, effective July 1, 1981 (p. 259, Rollo).
On the other hand, Doctor Venzon finished the medical course in the University of Santo Tomas
in 1957. She started working in the NIST in 1960. She has been working in that agency for more
than twenty-one (21) years. Doctor Anzaldo is senior to her in point of service.
Considering that Doctor Anzaldo has competently and satisfactorily discharged the duties of the
contested position for more than four (4) years now and that she is qualified for that position, her
appointment should be upheld. Doctor Venzon's protest should be dismissed.
WHEREFORE, the decision of respondent Clave dated March 20, 1980 is set aside, and
petitioner Anzaldo's promotional appointment to the contested position is declared valid. No
costs.
SO ORDERED.

MERAM VS EDRALIN
G.R. No. 71228 September 24, 1987
ERLINDA P. MERAM, petitioner, vs. FILIPINA V. EDRALIN, THE MINISTER OF
NATURAL RESOURCES AND THE PRESIDENTIAL ASSISTANT FOR LEGAL
AFFAIRS, respondents.
GUTIERREZ, JR., J .:
This is a petition for certiorari which seeks to set aside the decision of the Presidential Assistant
for Legal Affairs, permanently enjoining the Minister of Natural Resources and the Director of
the Bureau of Forest Development (BFD) from enforcing and implementing the decisions of the
Merit Systems Board and the resolutions of the Civil Service Commission which ordered the
appointment of the petitioner to the contested position of Administrative Officer V in the Bureau
of Forest Development.
On July 29, 1982, the private respondent Filipino V. Edralin, who was a training officer of the
Bureau of Forest Development (BFD) was proposed for appointment to the position of
Administrative Officer V, R-73, Administrative Division of the BFD. Petitioner herein and Mr.
Hermocio M. Agravio who hold the positions of Administrative Officer III,R-70 and Supply
Officer V, R-70 respectively, filed their protests against the proposal.
On the same date, the Director of the BFD sent a memorandum to the respondent Minister
stating that in the course of the deliberation of the BFD Promotion Board, the latter found out
that there are four BFD Personnel in the Central Office who are considered "next-in-rank" to the
position of Administrative Officer V namely:
Erlinda P. Meram, Administrative Officer Ill, Range 70, assigned as Chief of the
Internal Control Staff.
Hermecio M. Agravio, Supply Officer V, Range 70, Chief of the Property Section,
designated Asst. Chief of the Administrative Division from October 8, 1981 to
July 20, 1982.
Atty. Dominador Malong, Legal Officer, Range 69, assigned in the Legal
Division.
Atty. Salome T. Cansino, Trial Attorney Range 69, assigned in the Legal Division.
(Rollo, pp. 30-31)
In his memorandum, the Director also pointed out that the Board found that Mrs. Filipina V.
Edralin, Training Officer, Range 60, assigned in the Training Center was not next-in-rank.
On August 10, 1982, the Civil Service Commission forwarded to the respondent Minister the
protests of the petitioner and Agravio for appropriate action.
On August 12, 1982, the respondent Minister forwarded the permanent appointment of
respondent Edralin to take effect on August 17, 1982, as Administrative Officer V to the
Commission for appropriate action.
In his letter, the Minister explained that he assessed the recommendation of the Promotions
Board and considered also other aspects which are vital to the dynamism of the service; and upon
seeing that respondent Edralin is eminently qualified for the position, the person on whom he can
repose his trust and confidence, and who possesses the necessary integrity, knowledgeability and
sound judgment, he decided to appoint her to the said position for the best interest of the service.
In due course, the appointment was approved by the Commission "subject to the final outcome
of the protests against the appointment by Erlinda Meram and H. Agravio."
On September 1, 1982, the respondent Minister rendered a decision, embodied in two separate
letters, dismissing the protests. In his letter to the petitioner which was received by the latter on
September 10, 1982, the Minister assured her "that when another opportunity comes, and I have
had a chance to better appreciate your qualities and capabilities, then I would certainly consider
you for the appointment to a more senior position. "
Petitioner and Agravio appealed to the Merit Systems Board (MSB) pursuant to paragraph 2,
Section 5 of Presidential Decree (P.D.) No. 1409.
On January 13, 1983, the Merit Systems Board promulgated a decision in favor of Hermecio M.
Agravio, revoking the previous approval of the appointment of respondent Edralin and directing
the Minister to appoint, in her stead, Agravio to the contested position. In its decision, the MSB
ruled:
xxx xxx xxx
Based on the foregoing qualifications of the contestants, this Board finds that all
parties meet the eligibility requirement. While Mrs. Edralin and Mrs. Meram are
holders of bachelor's degree supplemented with at least 12 units in management
and/or public administration, Mr. Agravio, although a third year in Commerce,
has relevant in-service trainings/seminars which would sufficiently offset his one
year deficiency in college work and the required 12 units in management/public
administration (CSC Res. No. 682, dated July 20, 1977). Thus, all meet the
education requirement for the contested position. As to the required 5 years
experience, Mr. Agravio has been (an) Administrative Officer 11 for four years of
progressively responsible experience in all phases of administrative functions. In
the same manner, Meram bas been a Disbursinng Officer for more than one year,
a Budget Examiner for six months, Cashier IV for five years, and an
Administrative Officer Ill for more than three years or a total of about nine years
and six months. On the other hand, the relevant experience of Edralin consist of
three years in Training Assistant and about one year as Training Officer, which
experiences as Trainor, although may be considered, are however less than the
required five years of progressively responsible experience. However, Edralin's
deficiency in the required experience may be offset by her relevant trainings and
academic units earned in Master of Public Administration.
From the foregoing, it cannot be said that Mr. Agravio does not qualify for the
position, or that Mrs. Meram's work experience are not suitable and relevant, and
her education not appropriate to the contested position. Moreover, the contested
position is not confidential in nature but rather, belongs to the second level in the
career service so that trust and confidence are not the decisive factors in fining the
position.
The Merit Promotion Plan established by the Bureau of Forest Development
shows that the positions considered next-in-rank to the contested position of
Administrative Officer V (R-73) are: Administrative Officer III (R-70), Supply
Officer IV (R-70), Senior Legal Officer (R-69). Mrs. Meram holds the position of
Administrative Officer III, and Mr. Agravio, Supply Officer IV. Mrs. Edralin
holds the position of Training Officer (R-60) which is not listed as next-in-rank.
Such being the case, Mrs. Edralin is not, while Mrs. Meram and Mr. Agravio are
next-in-rank employees to the contested position. Hence, the latter two should
have been considered for the position of Administrative Officer V.
xxx xxx xxx
In terms of education, Mrs. Meram is a holder of bachelor's degree with 12 units
in Master in Business Administration and has 9 years and 6 months relevant
experience with 12 relevant trainings completed. Mr. Agravio, who is a third year
Commerce student, however, has 13 years of relevant experience to his credit and
23 relevant training completed. Moreover, for a period of 9 months, Mr. Agravio
was designated Officer-in-Charge, Administrative Division, pursuant to MNR
Special Order No. 359, series of 1981, and there is no showing that he failed to
discharge efficiently the duties and responsibilities of the position. Thus, Mr.
Agravio is considered more competent and qualified than Meram (Rollo, pp. 50-
51)
Both the petitioner and respondent Edralin filed motions for reconsideration. On May 16, 1983,
the MSB promulgated another decision modifying the earlier one and appointed the petitioner,
after finding that Agravio's designation as Assistant Officer-in-Charge was revoked because he
had been ineffective in said position.
Respondent Edralin appealed to the Civil Service Commission. On October 5, 1983, the
Commission dismissed the appeal and on May 3, 1984, it denied the respondent's motion for
reconsideration.
On May 18, 1984, respondent Edralin filed a letter-petition with the Office of the President
invoking Section 19(6) of P.D. No. 807. In her petition, Edralin alleged that jurisdiction in
promotional contests is lodged with the Ministry head and appeal by the aggrieved party from
decisions of said Ministry head should be taken to the Office of the President. Therefore, the
Merit System Board and the Civil Service Commission had no jurisdiction to act on petitioner's
appeal.
Petitioner, on the other hand, filed a motion for execution of the Commission's decision.
On June 14, 1984, the Confidential Legal Assistant of the Office of the Presidential Assistant for
Legal Affairs directed the Commission to forward within fifteen (15) days from receipt thereof,
the entire records of the case in view of Edralin's appeal
On July 19, 1984, the Commission rejected the order of the Office of the President, stating that
under Section 8, P.D. No. 1409, decisions of the Commission are subject to review only by the
courts.
On October 9, 1984, the Minister of Natural Resources issued a Memorandum to the BFD
Director instructing him to enforce and implement the order of the Commission for having
become final and executory.
On October 15, 1984, the BFD Director issued the appointment of Administrative Officer V to
the petitioner effective as of that date.
On February 20, 1985, Confidential Legal Assistant Sabio issued an order directing the MNR to
transmit all relevant records of the case.
Respondent Edralin wrote another letter to the President of the Philippines. It seems that this
letter was taken cognizance of by then President Marcos because on toPof such letter appeared a
note in his purported handwriting which reads:
9 March 1985
Justice Lazaro,
Tell Dir. Cortes to suspend everything pending study by the Office of the
President. Prepare decision on appeal for reconsideration.
(Sgd.) Illegible
(Rollo, p. 75)
In connection with the above note, Presidential Assistant for Legal Affairs Lazaro furnished a
copy of Edralin's letter with the President's marginal note to Director Cortes of the BFD.
On March 19, 1985, the Director of the BFD issued a memorandum informing Lazaro that the
matters which the President was directing him to suspend are already fait accompli and that,
therefore, while he was wining to comply with the Presidential instructions, the implementation
of his compliance had become legally untenable.
This nothwithstanding, on May 27, 1985, Lazaro rendered the questioned decision, the
dispositive portion of which provides:
WHEREFORE, IN VIEW OF ALL THE FOREGOING, the decision of the
Minister of Natural Resources embodied in two separate letters, both dated
September 1, 1982, dismissing the protests of Hermecio M. Agravio and Erlinda
P. Meram, is hereby AFFIRMED and the appeals therefrom of said protestants are
hereby DISMISSED FOR LACK OF MERIT. The Minister of Natural Resources
and the Director of the Bureau of Forest Development are hereby ENJOINED
PERMANENTLY from carrying out, complying with and/or enforcing in any
manner whatsoever, (1) the decisions dated January 13, 1983, and May 16, 1983
of the Merit Systems Board in MSB Case No. 813 and (2) Resolutions Nos. 83-
427 and 84-138, dated October 5, 1983, and May 3, 1984, respectively, of the
Civil Service Commission in CSC Case No. 84. (Rollo, p. 106)
Hence, this petition.
The principal issue presented in this case is whether or not the Office of the President acted
correctly in taking cognizance of respondent's letter-petition, and passing upon the same, and
thereafter, setting aside the decisions of the Merit Systems Board and the Civil Service
Commission.
P.D. No. 1409, Section 5(2) provides:
Sec. 5. Powers and Functions of the Board. The Board shall have the following
functions, among others:
xxx xxx xxx
(2) Hear and decide cases brought before it by officers and employees who feel
aggrieved by the determination of appointing authorities involving appointment,
promotion, transfer, detail reassignment and other personnel actions, as well as
complaints against any officers in the government arising from abuses arising
from personnel actions of these officers or from violations of the merit system."
In connection with this power of the MSB, Section 8 of this decree also provides:
Sec. 8. RelationshiPwith the Civil Service Commission. Decisions of the Board
involving the removal of officers and employees from the service shall be subject
to automatic review by the Commission. The Commission shall likewise hear and
decide appeals from other decisions of the Board, provided that the decisions of
the Commission shall be subject to review only by the Courts.
The petitioner contends that by virtue of the above-quoted decree which was promulgated on
June 8, 1978, the MSB and the Commission had validly acquired jurisdiction over her formal
protest to the exclusion of all other officials, boards or offices and that, therefore, the respondent
Presidential Assistant for Legal Affairs gravely abused his discretion when he disregarded and
declared as nun and void the decisions of the MSB and the resolutions of the Commission which
had already become final and executory, and in fact, had already been executed, enforced and
implemented.
On the other hand, the Solicitor-General contends that P.D. No. 807 vests exclusive appellate
jurisdiction upon the Office of the President in cases of appeal by a qualified next-in-rank
employee from decisions of ministry (department) heads arising from appointments in three (3)
specific cases. One of them is when said employee is contesting the appointment of one who is
not next-in-rank. Therefore, the petitioner's protest should have been elevated to the Office of the
President and not to the Commission, much less to the Merit Systems Board.
P.D. No. 807 was promulgated on October 6, 1975, Section 19 (6) of this decree provides:
Sec. 19 (6) A qualified next-in-rank employee shall have the right to appeal
initially to the department head and finally to the Office of the President an
appointment made (1) in favor of another next-in-rank employee who is not
qualified, or (2) in favor of one who is not next-in-rank, or (3) in favor of one who
is appointed by transfer and not next-in-rank, or by reinstatement, or by original
appointment if the employee making the appeal is not satisfied with the written
special reason or reasons given by the appointing authority for such appointment:
Provided, That final appeal shall be to the department head concerned if the
appointment is issued to a qualified next-in-rank employee. Before deciding a
contested appointment, the Office of the President shall consult the Civil Service
Commission. ... .
There is nothing in the above-quoted provision which connotes exclusivity of jurisdiction in the
Office of the President to take cognizance of the specific cases cited above. Furthermore, even if
it were so, with the promulgation of P.D. No.1409, this power of review by the Office of the
President was not only divested of its exclusivity but was, in fact, repealed altogether. The
petitioner, therefore, correctly filed her protest with the MSB in accordance with P.D. No. 1409.
Moreover, respondent Edralin is now estopped from questioning the orders of the MSB and the
Commission since she submitted to the jurisdiction of these two bodies by filing for
reconsideration with the MSB and upon denial of the same, by appealing to the Commission.
In the leading case of Tijam v. Sibonghanoy (23 SCRA 29), we ruled:
While petitioners could have prevented the trial court from exercising jurisdiction
over the case by seasonably taking exception thereto, they instead invoked the
very same jurisdiction by filing an answer and seeking affirmative relief from it.
What is more, they participated in the trial of the case by cross-examining
respondent Planas. Upon this premise, petitioners cannot now be allowed
belatedly to adopt an inconsistent posture by attacking the jurisdiction of the court
to which they had submitted themselves voluntarily.
This ruling was reiterated in Philippine National Bank v. Intermediate Appellate Court (143
SCRA 299).
As stated earlier, both the MSB and the Commission had jurisdiction to pass upon the petitioner's
protest with or without the application of the principle of estoppel. But more important, however,
is the fact that in the decision of the MSB on January 13, 1983, the said board found that
respondent Edralin is not an employee who is "next-in-rank" to the vacated position, and
although there is no mandatory nor peremptory requirement that persons next-in-rank are entitled
to preference in appointments (see Taduran v. Commissioner of Civil Service, 131 SCRA 66),
the very purpose of the civil service law dictates that persons who are qualified and next-in-rank
should be given preferential consideration when filling uPa vacated position through promotion.
In Samson v. Court of Appeals (145 SCRA 654, 658-659) we ruled:
xxx xxx xxx
... As may be noted, the general purpose of the Civil Service Law (Republic Act
No. 2260) is to "insure and promote the general mandate requiring appointments
only according to merit and fitness, and to provide within the public service a
progressive system of personal administration to insure the maintenance of an
honest and efficient progressive and courteous civil service in the Philippines."
(Section 2, R. A. 2260).
The principles governing the integrity of the civil service are of universal validity. As stated in
the case of Hanley v. Murphy (255 P. 2d, 1, 4):
xxx xxx xxx
... The civil service system rests on the principle of application of the merit
system instead of the spoils system in the matter of appointment and tenure of
office. (Barry v. Jackson, 30 Cal. App. 165, 169, 157 P. 828) To that end the
charter establishes a classified civil service system, with exclusive power in the
civil service commission to provide qualified personnel, for the various municipal
departments and to classify or reclassify positions according to prescribed duties ...
Furthermore, civil service laws are not enacted to penalize anyone. They are designed to
eradicate the system of appointment to public office based on political considerations and to
eliminate as far as practicable the element of partisanshiPand personal favoritism in making
appointments. These laws intend to establish a merit system of fitness and efficiency as the basis
of appointment; to secure more competent employees, and thereby promote better government.
(See Gervais v. New Orleans Police Department, 77 So 2d, 393; Civil Service Board of City of
Phoenix v. Warren, 244 P2d 1157 citing State ex rel. Kos v. Adamson, 226 Minn. 177, 32 N. W.
2d 281, 284)
In the case at bar, the BFD personnel who are considered next-in-rank to the vacated position
were Identified. Respondent Edralin was not one of them. In fact, she was nine or ten salary
ranges below the next-in-rank personnel. Subsequently, the MSB made the same finding in its
decision. Evidently, therefore, the foremost consideration why respondent's appointment was
ordered by the Office of the President notwithstanding the fact that petitioner was more qualified
and that she was next-in-rank was because of her petition to the President in the form of a letter
rather than an appeal and which started by introducing herself as "Filipina Villeses-Edralin, wife
of Efren E. Edralin of Sarrat, Ilocos Norte." The clear intent of her letter-petition was not to
appeal in accordance with P.D. No. 807 but to elicit some kind of favorable response from the
President based on considerations of blood ties, influence, or ethnic and regional affiliations. To
a certain extent she succeeded but this Court must strike down the practice of political, ethnic,
religious, or blood ties being used to get choice appointments for it goes against the very purpose
behind the establishment of the civil service in our country. As earlier stated, appointments under
the civil service law should be based on merit and fitness and should never depend on how
intimate a friend or how closely related an appointee is to the powers that be. And granting that
the respondent possesses the qualifications required for the contested position, it cannot be
denied that the petitioner equally possesses the same qualifications, if not in greater degree, and
more important, she is next-in-rank to the vacated position. Therefore, she deserves to be
appointed to the disputed item.
WHEREFORE, the petition is hereby GRANTED. The decision of the Presidential Assistant for
Legal Affairs dated May 27, 1985 is ANNULLED and SET ASIDE. The decision of the Merit
Systems Board dated May 16, 1983 and the resolutions of the Civil Service Commission which
dismissed respondent's appeal and motion for reconsideration are hereby REINSTATED and
made immediately EXECUTORY. No extension to file a motion for reconsideration will be
granted.
SO ORDERED.

JUDICIAL REVIEW
TANADA VS PHILIPPINE ATOMIC ENERGY COMMISSION
G.R. No. L-68474 February 11, 1986
NUCLEAR FREE PHILIPPINE COALITION, ET AL., petitioners, vs. NATIONAL
POWER CORPORATION, ET AL., respondents.
G.R. No. 70632 February 11, 1986
LORENZO M. TAADA, ET AL., petitioners, vs. PHILIPPINE ATOMIC ENERGY
COMMISSION, ET AL., respondents.
R E S O L U T I O N
PLANA, J .:
I. In G.R. No. 70632, (1) petitioners question the competence of respondent PAEC
Commissioners to pass judgment on the safety of the Philippine Nuclear Power Plant-1 PNPP-1
in PAEC Licensing Proceedings No. 1-77 without however seeking their ouster from office,
although "proven competence" is one of the qualifications prescribed by law for PAEC
Commissioners. (2) Petitioners also assail the validity of the motion (application) filed by the
National Power Corporation (NPC) for the conversion of its construction permit into an
operating license for PNPP-1 on the principal ground that it contained no information regarding
the financial qualifications of NPC, its source of nuclear fuel, and insurance coverage for nuclear
damage. (3) Petitioners finally charge respondent PAEC Commissioners with bias and
prejudgment.
1. The first issue must be resolved against the petitioners. Where the validity of an appointment
is not challenged in an appropriate proceeding, the question of competence is not within the field
of judicial inquiry. If not considered a qualification the absence of which would vitiate the
appointment, competence is a matter of judgment that is addressed solely to the appointing
power.
2. As regards the legal sufficiency of the NPC motion for conversion, petitioners contend that the
deficiencies they have indicated are jurisdictional infirmities which cannot be cured. The Court
believes however that said deficiencies may be remedied and supplied in the course of the
hearing before PAEC. For this purpose, respondent-applicant NPC may submit pertinent
testimonies and documents when the PAEC hearing is re-opened, subject to controversion and
counterproof of herein petitioners.
3. There is merit in the charge of bias and prejudgment. The PAEC pamphlets- particularly
Annexes "JJ", "KK" and "LL" of the petition (G.R. 70632)-clearly indicate the pre-judgment that
PNPP-1 is safe.
Exhibit "JJ" is an official PAEC 1985 pamphlet entitled "The Philippine Nuclear Power Plant-l."
It gives an overview specifically of PNPP-1, lauds the safety of nuclear power, and concludes
with a statement of the benefits to be derived when the PNPP-1 start operation.
. . .When the PNPP-1 starts operating, it will generate a power of 620 megawatts enough to
supply 15 percent of the electricity needs in Luzon. This is estimated to result in savings of US
$ 160 million a year, representing the amount of oil displaced.
Aside from being a reliable source of electricity, nuclear power has an excellect safety record and
has been found to result in lower occupational and public risks than fossil fired (coal or oil)
stations. (p. 6. Emphasis supplied.)
The second pamphlet (Exh. "KK") is entitled "NUCLEAR POWER-SAFE CLEAN
ECONOMICAL AND AVAILABLE." On the surface, it merely propagates the use of nuclear
power in general. But its numerous specific references to the PNPP-1 "which will be operational
in 1985." and its advantages give credence to the charge that Exhibit "KK" was in reality
designed to project PNPP-1 as safe, among other
When Exhibit "KK" was published, PNPP-1 was the only nuclear plant under construction in the
Philippines. It is the Philippine nuclear plant specifically mentioned therein that was to be
operational in 1985. Therefore, when the pamphlet states that nuclear power is working now in
other countries and "it should work for us too" because it is "safe" and economical", it is logical
to conclude that the reference is to no other than the nuclear power to be generated at the PNPP-1
Also worth quoting is the following passage in Exhibit "KK" which sweepingly vouch safes all
nuclear power plants, including the PNPP-1:
No member of the public has ever been injured during the last 25 years that
commercial nuclear reactors have been generating electricity. As is to be expected
in any complex system as nuclear power plants, there have been failure of
equipment and human errors. However in every instance, the safety equipment
designed into the nuclear reactor self terminated the accident without injury to the
operators or the public. The Three Mile Island Incident, serious as it was, did not
result in the loss of life nor did it result in the exposure of anyone beyond
permissible limits.
The designers of nuclear plants assume failure to occur, and provide multiple
safeguards protection against every conceivable malfunction (P. 7, Emphasis
supplied.)
The third pamphlet (Exh. "LL") is entitled NUCLEAR POWER PLANT and
ENVIRONMENTAL SAFETY. Speaking specifically of the PNPP-1 it categorically states that
the Bataan nuclear plant will not adversely affect the public or the flora or fauna in the area. One
of the stated reasons in support of the conclusion is
And environmentally, a nuclear power plant emits only insignificant amount of radioactivity to
the environment. It does not cause chemical pollution of air or water, it does not emit sulfur
dioxide or nitrogen oxides like plants fired by fossil fuels such as coal and oil, Besides, even coal
fired plants may emits radioactive particles of uranium and thorium because these may be found
naturally associated with coal deposits.
Comparatively therefore, a nucelar power plant is the cleanest and the safest environmently no
other technology in modern times has been developed with so dominant concern for public safety
as nuclear power. (p. 8)
Respondent PAEC Commissioners cannot escape responsibility for these official pamphlets.
Exhibit "JJ" was published in 1985, when respondent Commissioners had already been
appointed to their present positions. Exhibits "KK" and "LL" were issued earlier, but the
majority of respondent Commissioners even then were already occupying positions of
responsibility in the PAEC. Commissioner Manuel Eugenio was Acting Chief of the PAEC
Department on Nuclear Technology and Engineering from June, 1980 to July, 1984;
Commissioner Quirino Navarro was PAEC Chief Science Research Specialist from May, 1980
to September, 1984-, and Commissioner Alejandro Ver Albano was PAEC Deputy
Commissioner from March, 1980 to September, 1984. Additionally, the stubborn fact remains
unrebutted that Exhibits "J.J." "KK" and "LL" continued to be distributed by PAEC as late as
March, 1985. In other words their official distribution continued after the filing of NPC's motion
for conversion on June 27, 1984 and even after PAEC had issued its order dated February 26,
1985 formally admitting the said motion for conversion.
At any rate, even if it be assumed that there are some doubts regarding the conclusion that there
has been a prejudgment of the safety of PNPP-1 the doubts should be resolved in favor of a
course of action that will assure an unquestionably objective inquiry, considering the
circumstances thereof and the number of people vitally interested therein.
Having thus prejudged the safety of the PNPP-1 respondent PAEC Commissioners would be
acting with grave abuse of discretion amounting to lack of jurisdiction were they to sit in
judgment upon the safety of the plant, absent the requisite objectivity that must characterize such
an important inquiry.
The Court therefore Resolved to RESTRAIN respondent PAEC Commissioners from further
acting in PAEC Licensing Proceedings No. 1-77.
II. In G.R. No. 68474, acting on the motion filed therein dated June 8, 1985 to order PAEC to
reconsider its orders of May 31 and June 5, 1985, the urgent motion for mandatory injunction
and/or restraining order dated August 3, 1985, the second urgent motion for mandatory
injunction dated August 12, 1985, and the various pleadings and other documents submitted by
the parties relative thereto, and considering the paramount need of a reasonable assurance that
the operation of PNPP-1 will not pose an undue risk to the health and safety of the people, which
dictates that the conduct of the inquiry into the safety aspects of PNPP-1 be characterized by
sufficient latitude, the better to achieve the end in view, unfettered by technical rules of evidence
(Republic Act 5207, section 34), and in keeping with the requirements of due process in
administrative proceedings, the Court Resolved to ORDER respondent PAEC (once
reconstituted) to re-open the hearing on PNPP-1 so as to give petitioners sufficient time to
complete their cross-examination of the expert witnesses on quality assurance, to cross-examine
the witnesses that petitioners have failed to cross-examine on and after August 9, 1985, and to
complete the presentation of their evidence, for which purpose, respondent PAEC shall issue the
necessary subpoena and subpoena duces tecum to compel the attendance of relevant witnesses
and/or the production of relevant documents. For the said purposes, the PAEC may prescribe a
time schedule which shall reasonably assure the parties sufficient latitude to adequately present
their case consistently with the requirements of dispatch. lt is understood that the PAEC may
give NPC the opportunity to correct or supply deficiencies in this application or evidence in
support thereof.
Separate Opinions
ABAD SANTOS, J ., concurring:
I associate myself with Justice Plana's position. Additionally, I would like to answer the question
posed by Justice Patajo who asks: "Can We compel the President to designate another body to
try the case pending before PAEC or appoint temporary commissioners while respondents are
still holding office?
No, this Court cannot compel the President to designate another body or appoint temporary
commissioners. It would be unthinkable for this Court to compel the President of the Philippines
to do anything at anytime. What this Court should do is to restrain the commissioners from
further acting in PAEC Licensing Proceedings No. 1-77. What the President does thereafter is for
him to decide. This Court does not tell him what to do. It cannot because of the separation of
powers and the obvious fact that he is not a party to the proceedings.

AQUINO, C.J ., dissenting
I dissent. G.R. No. 68474 is an action filed on September 1, 1984 for mandamus and injunction
wherein the petitioners, as taxpayers and citizens, prayed that the Philippine Atomic Energy
Commission (PAEC) and the National Power Corporation be ordered to give public notice and
hold a public hearing and give the petitioners copies of the contracts with Westinghouse.
This prayer had been granted by the respondents. As noted by the Solicitor General, that case
had been terminated (pp. 370-371, Vol. 11, Rollo of G.R. No. 68474, p. 410 Vol. II, Rollo of
G.R. No. 70632). Therefore, G.R. No. 68474 had become MOOT and ACADEMIC.
G.R. No. 70632 is an action filed on April 27, 1985 by the petitioners, as citizens and taxpayers,
for prohibition and injunction praying that the PAEC be enjoined from hearing the NPC's motion
for a license to operate the Bataan Nuclear Plant.
In its resolution of August 29, 1985 this Court issued a temporary restraining order enjoining the
PAEC from further proceeding in the licensing proceedings. The petitioners had participated in
the hearings on said motion. They used about 153 hours out of the 205 hours consumed in the
course of the hearings (p. 413, Vol. I 1, Rollo of G. R. No. 70632).
The instant case of G.R. No. 70632 should be DISMISSED because the petitioners HAVE NO
CAUSE OF ACTION FOR PROHIBITION AND INJUNCTION (See dissent in G.R. No. 68474
dated May 14,1985,395-B, Vol. 11, Rollo).
As taxpayers and citizens, they have no legal standing to file the petition. Generally, a citizen
and taxpayer cannot invoke judicial power to determine the validity of an executive or legislative
action (Subido vs. Sarmiento, 108 Phil. 150, 157).
Prohibition is not the same as injunction. Lawyers often make the mistake of confusing
prohibition with injunction. Basically, prohibition is a remedy to stop a tribunal from exercising
a power beyond its jurisdiction. The PAEC has been acting within its jurisdiction. Prohibition
does not lie against it.
Prohibition is an extraordinary prerogative writ of a preventive nature, its proper function being
to prevent courts or other tribunals, officers, or persons from usurping or exercising a jurisdiction
with which they are not vested (73 C.J.S. 10).
This Court has no original jurisdiction to issue the writ of injunction. Hence, that remedy cannot
be invoked here.
The matter of the operation of a nuclear plant is a political question. It is a question of policy as
to which the Executive Department has discretional authority (Tanada and Macapagal vs.
Cuenco, 103 Phil. 1051, 1067).
No justiciable controversy is involved in the instant case. The great public interest involved in
the dispute does not justify the petitioners in USING THIS COURT TO INTERFERE with the
hearings conducted by the PAEC and with its interlocutory orders.
Its decisions are reviewable by the Appellate Court in accordance with section 9 of the Judiciary
Revamp Law in relation to section 36 of Republic Act No. 5207. The petitioners should not be
allowed to use this Court as an instrument to stop the operation of the nuclear plant. This Court is
not competent, and it has no jurisdiction in this case, to determine its safety. This case cannot be
utilized for making a pronouncement as to its safety.
Secretary Vicente Abad Santos in his opinion dated February 27, 1976 held that the nuclear plant
contract is lawful (p. 1 1 1, Vol. 1, Rollo of G.R. No. 68474).
The matter of safety had been passed upon by a Commission composed of Justices Puno,
Vasquez and Bautista in a 140-page report dated November 13, 1979 and by the International
Atomic Energy Agency in 1984 and in 1985. (See Comment of NPC dated November 20, 1985,
Vol. IV, Rollo of G.R. No. 68474.)
Petitioners should resort to other forums for the articulation of their opposition to the nuclear
plant. It is not wrong to oppose the nuclear plant. What is wrong is to employ this Court without
justification as a weapon for opposing it.
G.R. No. 70632 should be DISMISSED FOR LACK OF MERIT. The restraining order should
be lifted. As already shown, G.R. No. 68474 had become MOOT.
PATAJO, J ., dissenting:
I vote for the dismissal of G.R. No. 68474 for being moot and academic joining in this score the
separate opinion of the Chief Justice.
I vote also for the dismissal of G.R. No. 70632, said action being premature. There is no showing
that the competence of PAEC Commissioners to seat on the case had been properly brought
against said Commissioners and the latter had denied said challenge. More importantly
prohibition or injunction is not the proper remedy to question the competence or qualification of
one properly appointed to an office or position. If respondent Commissioners have been validly
appointed as PAEC Commissioners prohibition will not lie to prevent them from performing
their functions on the ground that they do not possess necessary competence or know how to do
their job.
I believe, further, that the pamphlets and articles published by PAEC regarding the safety of
nuclear plants which have not been shown to have been prepared by the Commissioners
themselves can be taken as evidence of bias in favor of granting the license to operate the nuclear
plant in question. I am more inclined to believe that said articles refer to the safety of nuclear
plants per se and not particularly to the Bataan nuclear plant. I trust that respondent
Commissioners can still be objective in their disposition of the petition pending before them and
can decide the same on the basis of the evidence presented during the continuation of the hearing.
From their decision the aggrieved party can appeal to the Intermediate Appellate Court.
Another important consideration that must not be overlooked is that if respondent PAEC
Commissioners are disqualified who will try the case? Can We compel the President to designate
another body to try the case pending before PAEC or appoint temporary commissioners while
respondents are still holding office? Would not such a dilemma result in a stalemate and further
delay? It is no answer to said dilemma as suggested by petitioners that respondent
Commissioners could resign and pave the way for the appointment of their replacements. For
them to resign would be a virtual admission of the claim of petitioners that they are incompetent.
GUTIERREZ, JR., J ., concurring and dissenting:
I concur in the Court's resolution but am registering a dissent insofar as Commissioner Reynaldo
Suarez is concerned. The PAEC exercises both quasi-legislative and quasi-judicial powers.
During the hearings involving tens of billions of pesos of public funds, the immediate resolution
of difficult procedural questions is often necessary. Complex issues calling for the application of
an entirely new field of substantive law are raised before the Commission. Resultant criminal
prosecutions or civil suits are ever present possibilities. I believe that the constitutional
requirement of due process calls for the appointment of a qualified "law member" in the
Commission. Commissioner Suarez, a former Nueva Ecija Regional Trial Court Judge and
prominent practising lawyer of Angeles City is qualified for the position. Regarding the official
pamphlets issued by PAEC, all except one of the pamphlets were issued before Commissioner
Suarez' appointment to the Commission and as for the one exception, there is no showing that he
was involved or had anything to do with its preparation and issuance.
Considering the foregoing, the law member should not be included in the Court's action
regarding the respondent Philippine Atomic Energy Commission.

MATHAY VS CSC
G.R. No. 130214 August 9, 1999
ISMAEL A. MATHAY, JR., petitioner, vs. CIVIL SERVICE COMMISSION, respondent.
DAVIDE, JR., CJ .:
Petitioner Ismael A. Mathay, Jr. (hereafter MATHAY); Mayor of Quezon City, seeks the
nullification of the resolutions of the Civil Service Commission (CSC) recalling his appointment
of Olegario S. Tabernilla (hereafter TABERNILLA) as Electrical Engineer V in the city
government; and consequently, the reversal of the Resolutions of the Court of Appeals of (1) 16
July 1997 denying due course and dismissing the petition for certiorari docketed as CA-G.R. No.
44431, and (2) 12 August 1997 denying the motion for reconsideration.
The antecedent facts follow:
On 26 November 1992, the Quezon City Council enacted City Ordinance No. SP-33, S. 92,
creating an Electrical Division under the Engineering Department with thirty-six new plantilla
positions to complement the staffing requirements. One of those newly created positions was
Electrical Engineer V, which required a Professional Electrical Engineer to fill it up and which
became the subject of a heated competition by two licensed professional electrical engineers,
TABERNILLA and Jose I. Enriquez (hereafter ENRIQUEZ). The former was an Engineer II,
and the latter was an Electrical Engineer III of the existing Electrical Division under the City Fire
Department, which was previously part of the Quezon City Government but which was later
transferred to the Bureau of Fire Protection, Quezon City Fire Station. Conformably to the long
existing city policy of providing preferential consideration to Quezon City residents in the filling
up of positions in the city office, the Personnel Selection Board of the city government
recommended the appointment of TABERNILLA, who had in his favor the advantage of being a
Quezon City resident.1wphi1.nt
On 22 August 1994, MATHAY extended to TABERNILLA a permanent appointment, which
was approved on 15 September 1994 by the CSC Regional Field Office Acting Director II,
Ligaya I. Caya.
1
TABERNILLA thereafter took his oath of office and assumed the duties of his
new position.
ENRIQUEZ disputed the "promotional" appointment before the CSC, claiming it was issued in
clear violation of CSC MC No. 42, s. 1991, which prescribes a Bachelor's Degree in Engineering
as the educational requirement for the service-wide position of Engineer V. TABERNILLA, a
mere Associate Electrical Engineer and not a holder of a Bachelor's Degree, clearly failed to
meet the qualifications of the position and, therefore, could not be validly appointed thereto.
Requested to comment on the protest, MATHAY maintained that TABERNILLA's assumption
of the position effective 1 October 1994 mooted the protest, adding that his appointee met the
minimum requirements of the position as specified in the City Ordinance and existing hiring
policies.
In its Resolution No. 95-1218 dated 10 January 1995
2
the CSC recalled and revoked the
appointment of TABERNILLA; thus:
After a careful review of the records, the Commission finds the appointment issued to
Tabernilla not in order.
The requirements prescribed by the qualification standard for the position of Engineer V
are as follows:
EDUCATION: Bachelor's degree in Engineering relevant to the job.
EXPERIENCE: 4 years in position/s involving management and supervision.
The records clearly show that Tabernilla has not obtained any bachelor's degree in
engineering. This is even reflected in the evaluation sheet for the position of Engineer V,
which was submitted by Mayor Mathay. It appears in said evaluation sheet that
Tabernilla is only a graduate of Associate in Electrical Engineering. Thus, he was not
qualified for appointment to the position of Electrical Engineer V.
WHEREFORE, the approval of the appointment of Olegario S. Tabernilla as Engineer V
dated August 22, 1994, is hereby recalled and revoked.
Ligaya Caya, Acting Field Officer is hereby directed to explain in writing within five (5)
days from receipt hereof why she approved Tabernilla's appointment under permanent
status although he does not meet the qualification requirements.
MATHAY moved for the reconsideration
3
of the said Resolution, alleging that the Ordinance
which was the law that created the office unequivocally specified a Professional Electrical
Engineer as its only requirement; hence, the appointee needed only to comply therewith. While
conceding that the appointment in local government units are subject to civil service laws, rules
and regulations, MATHAY averred that such truism cannot override the right of the right of the
appointing power to choose his appointee, considering that the power of appointment is
essentially discretionary.
4
MATHAY further argued that TABERNILLA's title to the office
became complete with the confirmation by the CSC Regional Field Office of TABERNILLA's
appointment and his subsequent taking of the of the oath of office and assumption of duties.
TABERNILLA then acquired a legal right which could not be taken away from him either by
revocation of the appointment or by removal except for cause and with previous notice and
hearing.
5
MATHAY then intimated that TABERNILLA was not notified of the protest, nor was
a hearing conducted thereon.
MATHAY thereafter filed a supplemental motion manifesting that under Republic Act. No.
184,
6
the education requirement for admission to the Electrical Engineering Board Examinations
is only two years of resident collegiate engineering training. Since TABERNILLA completed the
two-year Associate in Electrical Engineering course and passed the board examinations, he was
qualified for the contested position.
In Resolution 95-1743
7
dated 9 March 1995, the CSC denied the motion for reconsideration. It
elucidated that under Sections 76, 77 and 78 of R.A. No. 7160, otherwise known as the Local
Government Code of 1991, the CSC has the power to determine the qualification standards for
the various positions in the local government and review whether the appointments meet these
standards. The qualification standards for new offices, which local governments have the
authority to create, must not be lower than those prescribed by the CSC. Under existing civil
service laws and rules, an appointee to Engineer V must possess a Bachelor's Degree in
Engineering. TABERNILLA certainly failed to qualify for the position. The fact that he met all
the requirements for admission to Electrical Engineering Board Examination as provided for
under R.A. No. 184, and passed the said examination does not mean compliance with the
prescribed qualification standards.
On 7 September 1995, TABERNILLA filed his own "petition" praying for the review of, and
"second hard look" on, Resolutions Nos. 95-0218 and 95-1743.
On 13 June 1996, the CSC issued Resolution No. 963779
8
denying the "petition," which it
treated as a motion for reconsideration. It ratiocinated that TABERNILLA had no legal
personality to file such a pleading because under MC 38, s. 93, Part I(3), a "[r]equest for
reconsideration of action taken by the CSC Office on appointments shall always be made by the
appointing officer." Besides, the allegations in the said "petition" were not meritorious.
On 25 July 1996, MATHAY filed a "petition" with the CSC praying for the "review and
reconsideration" of the three adverse Resolutions thus far issued, and reiterating therein the
arguments adduced in the first motion for reconsideration.
The "petition" obtained a similar unpropitious fate with the CSC's denial of the same per
Resolution No. 972545
9
dated 14 April 1997 on the grounds that (1) the "petition" was in the
nature of a second motion for reconsideration, which was not allowed pursuant to Section 9 of
the Uniform Rules of Procedures in the Conduct of Administrative Investigations, as "only one
motion for reconsideration [could] be entertained"; and (2) it was filed late.
Undaunted, MATHAY filed before the Court of Appeals on 17 June 1997 a petition for
certiorari under Rule 65 of the Revised Rules of Court contending that the CSC acted without or
in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction in issuing Resolution Nos. 95-0218, 95-1743, 96-3779, and 97-2545.
The Court of Appeals, however, dismissed the petition in a Resolution
10
promulgated on 16 July
1997 "for being the wrong remedy and for being time-barred." It ruled that the petition for
certiorari filed nineteen days after receipt of Resolution No. 97-2545 could not be a substitute
for a lost appeal.
In his motion for reconsideration, MATHAY argued that "what was brought to fore" in his
petition for certiorari was an error of jurisdiction in that the CSC had no jurisdiction or authority
to revoke or cancel an approved and completed appointment to a civil service position. Hence,
Rule 65 of the Rules of Court, not Supreme Court Administrative Circular No. I-95, applied.
Unimpressed, the Court of Appeals denied the motion for reconsideration in a Resolution
11

promulgated on 12 August 1997, adverting to the same reasons relied upon in dismissing the
petition. Furthermore, it held that MATHAY was precluded from raising the question of
jurisdiction, since he failed to submit the same as an issue in the proceedings before the CSC.
MATHAY now posits in this petition for review on certiorari under Rule 45 of the 1997 Rules
of Civil Procedure that the Court of Appeals committed gross errors of law in holding that (1) his
petition for certiorari was not the proper remedy and could not be a substitute for appeal; (2)
said petition was time-barred; (3) the CSC had jurisdiction to recall and revoke a completed
appointment; and (4) petitioner did not raise the question of jurisdiction in the proceedings
before the CSC such that he was guilty of laches and estoppel.
The CSC, through the Office of the Solicitor General, remains steadfast in its view that it
committed no error of jurisdiction, as it was merely enforcing its revisory power over a
subordinate when it reversed the erroneous determination by the Regional Field Office of
TABERNILLA's qualification. The CSC now proposes that the Quezon City ordinance was an
ultra vires act, considering that the same prescribed a qualification standard lower than that set
for the position, and, hence, fell short of the injunction of Section 78 of R.A. No. 7160 that all
matters pertinent to human resources and development in local government units should be
governed by civil service laws.
The instant petition must fail.
It must be recalled that in its Resolution of 9 March 1995 the CSC denied petitioner's motion for
the reconsideration of its Resolution of 10 January 1995 revoking the appointment of
TABERNILLA. Petitioner received a copy of the former Resolution on 4 April 1995. At the time,
judgments or final orders of the CSC were unappealable.
12
It was only on 1 June 1995 that
Revised Administrative Circular No. 1-95 took effect. That Circular provides that judgments or
final orders of quasi-judicial agencies, like the CSC, may be appealed to the Court of Appeals
within fifteen days from notice thereof. Hence, before that date, judgments or final orders of the
CSC were subject only to the certiorari jurisdiction of this Court.
13
Section 7, Subdivision A,
Article IX of the Constitution provides:
Unless otherwise provided by this Constitution or by law, any decision, order, or ruling
of each Commission may be brought to the Supreme Court by certiorari by the aggrieved
party within thirty days from receipt of a copy thereof.
The remedy, therefore, of petitioner was to file with this Court a special civil action for certiorari
within thirty days from 4 April 1995. But he failed to do so; thus, the challenged resolutions
became final.
Notwithstanding the finality of the aforementioned resolutions, TABERNILLA filed on 7
September 1995 a petition before the CSC for the review of said resolutions. As correctly held
by the CSC, the said petition, which was in fact a motion for reconsideration, would not prosper
because under Part I(3) of Memorandum Circular No. 38, Series of 1993, only the appointing
officer, in this case MATHAY, can request reconsideration of actions taken by the CSC on
appointments. Besides, the said petition was filed long after the resolutions sought to be
reconsidered became final.
But still, on 25 July 1996, or more than a month after the issuance of the resolution denying
TABERNILLA's motion for reconsideration, MATHAY filed with the CSC a petition for the
review and reconsideration of the three resolutions thus far issued. This petition was correctly
treated by the CSC as a second motion for reconsideration, it having been filed with the same
body that issued the assailed resolutions, coupled with the fact that it was a rehash of the
arguments raised in the first motion for reconsideration. As such, the same could not be
considered because under Section 9 of the Uniform Rules of Procedure in the Conduct of
Administrative Investigations, which is applicable to protests or questions involving the issuance
of appointments, "only one motion for reconsideration shall be entertained." Section 17, Rule VI
of the Omnibus Rules Implementing Book V of Executive Order No. 292 and Other Pertinent
Civil Service Laws also provides: "In all instances, only one petition for reconsideration shall be
entertained." Even assuming that a second motion for reconsideration was allowed by the Rules,
MATHAY's "petition" would still be met with denial because it was filed more than a year after
his receipt of the resolution denying his first motion for reconsideration.
As earlier discussed, the Resolutions of 10 January and 9 March 1995 had already attained
finality. This Court, therefore, finds no necessity to pass upon the timeliness or propriety of the
petition for certiorari filed by MATHAY before the Court of Appeals on 17 June 1997, or after
more than two years from the date the said resolutions became final.
Nevertheless, even granting for the sake of argument that the questioned resolutions were not yet
final and that MATHAY's second motion for reconsideration was allowed and seasonably filed,
the petition for certiorari instituted before the Court of Appeals had to be dismissed just the
same. The special civil action for certiorari under Rule 65 of the Rules of Court will lie only if
there is no appeal or any plain, speedy or adequate remedy in the ordinary course of law.
14
In this
case, after the denial of MATHAY's second motion for reconsideration, appeal was available as a
remedy. As earlier mentioned, Revised Administrative Circular No. 1-95, which took effect on 1
June 1995, provides for an appeal to the Court of Appeals from the judgments, final orders or
resolutions of the Civil Service Commission. And Section 4 thereof mandates that the appeal be
taken within fifteen days from notice of the denial of the motion for reconsideration duly filed in
accordance with the governing law of the court or agency a quo. Here, MATHAY filed his
petition before the Court of Appeals on 17 June 1997, or nineteen days after his receipt of the
resolution denying his second motion for reconsideration. As held in cases too numerous to
mention, a special civil action for certiorari cannot be availed of as a substitute for a lost or
lapsed remedy of appeal.
15

The petitioner asseverates, however, that the said resolutions were void and were issued in
violation of due process; hence, they could never become final, and they could be attacked
directly or collaterally even after the time of appeal or review has lapsed. According to him, the
CSC had no jurisdiction or authority to revoke or cancel an appointment to a civil service
position after its Regional Office had approved the same and the appointed had assumed the new
position.
We cannot subscribe to petitioner's theory. Under Section 12 (11) of Book V of Executive Order
No. 292, otherwise known as the "Administrative Code of 1987," the CSC has the power to
"[h]ear and decide administrative cases instituted before it directly or on appeal, including
contested appointments, and review decisions and actions of its agencies and of the agencies
attached to it." Moreover, Section 20, Rule VI of the Omnibus Rules Implementing Book V
Executive Order No. 292 and Other Pertinent Civil Service Laws provides that notwithstanding
the initial approval of an appointment, the same may be recalled for "[v]iolation of other existing
Civil Service laws, rules and regulations." As held in Debulgado v. Civil Service Commission,
16

the CSC is empowered to take appropriate action on all appointments and other personnel actions
and that such power "includes the authority to recall an appointment initially approved in
disregard of applicable provisions of Civil Service law and regulations."
Accordingly, it cannot be said that the CSC did not have jurisdiction or gravely abused its
discretion in recalling the appointment of TABERNILLA, which was issued in violation of
existing civil service rules prescribing a Bachelor's Degree in Engineering as one of the
minimum qualifications for the questioned position.
Anent petitioner's imputation to the CSC of violation of due process, the same does not hold
water. What was lodged before the Commission was not disciplinary case wherein petitioner or
TABERNILLA should have been afforded an opportunity to be heard. As ruled in Debulgado,
17

the CSC, in approving or disapproving an appointment, "only examines the conformity of the
appointment with applicable provisions of law and whether the appointee possesses the
minimum qualifications and none of the disqualifications." At any rate, petitioner was requested
to comment on the protest; and he did file comment and, later, a motion for reconsideration of
the revocation of the initially approved appointment.
Finally, petitioner fears that if the CSC resolutions recalling the appointment made by MATHAY
is upheld, it would "throw out of job a civil service employee who had rendered more than forty
years of satisfactory service for the Government, all because he relied on the presumption that
the Acting Regional Director regularly performed her official duty."
Petitioner's apprehension is without basis. Section 19, Rule VI of the Omnibus Rules
Implementing Book V of E.O. No. 292 , as well as Sections 43 and 48 of the Uniform Rules of
Procedure in the Conduct of Administrative Investigations, specifically provides that in case the
protest is finally resolved against the protestee, his appointment shall become ineffective and he
shall be reverted to his former position.
WHEREFORE, the present petition is DISMISSED. The challenged resolutions of the Civil
Service Commission are hereby AFFIRMED.1wphi1.nt
SO ORDERED.

UP AND ALFREDO TORRES VS CSC
G.R. No. 132860 April 3, 2001
UNIVERSITY OF THE PHILIPPINES and ALFREDO DE TORRES, petitioners, vs.
CIVIL SERVICE COMMISSION, respondent.
PANGANIBAN, J .:
As part of its academic freedom, the University of the Philippines has the prerogative to
determine who may teach its students. The Civil Service Commission has no authority to force it
to dismiss a member of its faculty even in the guise of enforcing Civil Service Rules.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court, seeking to set aside the
October 31, 1997 Decision
1
of the Court of Appeals (CA)
2
in CA-GR SP No. 40128. The CA
upheld Resolution Nos. 95-3045
3
and 96-1041
4
issued by the Civil Service Commission (CSC)
on May 5, 1995 and February 15, 1996, respectively. In these Resolutions, the CSC held that
Petitioner "Alfredo De Torres is considered to have been dropped from the service as of
September 1, 1989. Hence, his re-employment requires the issuance of an appointment subject to
the requirements of the Civil Service Law and Rules."
De Torres' Motion for Reconsideration of the CA Decision was denied in the February 25, 1998
Resolution of the Court of Appeals.
5

The Facts
The undisputed factual antecedents are summarized by the Court of Appeals thus:
"Dr. Alfredo B. De Torres is an Associate Professor of the University of the Philippines
in Los Baos (UPLB) who went on a vacation leave of absence without pay from
September 1, 1986 to August 30, 1989. During this period, he served as the Philippine
Government'' official representative to the Centre on Integrated Rural Development for
Asia and [the] Pacific (CIRDAP).
"When the term of his leave of absence was about to expire, CIRDAP requested the
UPLB for an extension of said leave of absence for another year, but was denied by Dr.
Eulogio Castillo, the then Director of the Agricultural Credit Corporation, Inc. (ACCI) of
UPLB. In the same letter, Dr. Castillo advised Dr. De Torres to report for duty at UPLB
not later than September 15, 1989; while the then UPLB Chancellor Raul P. de Guzman
apprised him on the rules of the Civil Service on leaves and warned of the possibility of
being considered on Absence Without Official Leave (AWOL) if he failed to return and
report for duty as directed.
"On August 27, 198[9], Dr. De Torres wrote UPLB that he had 'no alternative but x x x to
pursue the matter in continuing his commitment to CIRDAP.' In response thereto,
Chancellor de Guzman warned De Torres, in a Letter dated November 20, 1989, that in
case of the latter's failure to report 'within 30 days from today,' UPLB would be forced to
drop him from the rolls of personnel. Despite the warning, Dr. De Torres did not report to
work.
"On January 3, 1994 or after almost five years of absence without leave, Dr. De Torres
wrote the incumbent Chancellor Ruben L. Villareal that he was reporting back to duty at
ACCI-UPLB effective January 3, 1994 x x x. However, Chancellor Villareal notified Dr.
De Torres that 'when an employee reports back for duty, he should have been from an
approved leave ' Likewise, Director Leodegacio M. Ilag, of ACCI-UPLB, in a Letter
dated February 10, 1994, informed De Torres that in the absence of any approved
application for leave of absence, he [was] considered to be on AWOL. Thus, he was
advised to re-apply with UPLB.
"On June 30, 1994, Dr. De Torres wrote Chancellor Villareal seeking reconsideration [of]
the two aforementioned decisions x x x. On July 4, 1994, Chancellor Villareal reversed
his earlier stand and notified De Torres that since records at UPLB [did] not show that he
ha[d] been officially dropped from the rolls he may report for duty effective January 3,
1994 x x x.
"Mesdames Juanita Baskinas and Winifreda Medina, members of Academic Personnel
Committee, ACCI-UPLB, requested the Civil Service Commission regarding the
employment status of Dr. De Torres x x x.
"On May 5, 1995, the Commission issued CSC Resolution No. 95-3045 x x x, the
dispositive portion of which reads:
'WHEREFORE, the Commission hereby rules that Dr. De Torres is considered to
have been dropped from the service as of September 1, 1989. Hence, his re-
employment requires the issuance of appointment subject to the requirements of
Civil Service Law and Rules.'
"On June 9, 1995, Dr. De Torres and the University of the Philippines at Los Baos
(UPLB) filed separate requests for reconsideration of aforesaid CSC Resolution No. 95-
3045 dated May 5, 1995. In its CSC Resolution No. 96-1041 x x x, the commission
denied the motion for reconsideration, further stating that CSC Resolution No. 95-3045
[stood] and that since separation from the service [was] non-disciplinary in nature, the
appointing authority may appoint Dr. De Torres to any vacant position pursuant to
existing civil service law and rules."
6

The CSC rationalized its ruling in this manner:
"It could be gleaned from the foregoing circumstances that De Torres was already on
AWOL beginning September 1, 1989 since his request for extension of leave of absence
for one year was denied by then Chancellor De Guzman. It is a fact that De Torres'
absence from work was not duly authorized by UPLB. Despite the advice of Chancellor
De Guzman to him that he should report for duty on or before September 5, 1989, De
Torres failed to do so. Thus, his failure to assume duty as ordered caused his automatic
separation from the service."
The Ruling of the CA
From the unfavorable Resolutions of the CSC, petitioners sought recourse before the Court of
Appeals. But, finding "no grave abuse of discretion amounting to lack or x x x excess of
jurisdiction on the part of the respondent commission in the issuance of the questioned
Resolution," the appellate court dismissed the Petition for lack of merit. Petitioners' Motion for
Reconsideration was denied in the CA Resolution dated February 25, 1998. Thus, this Petition
for Review.
7

Issues
Petitioners submit the following questions of law for the Court's consideration:
8

"I
Whether or not a new appointment is still necessary for Dr. de Torres to resume his post
at the UNIVERSITY despite having remained continuously with the Civil Service, not
having been dropped from the rolls of the University, and after returning to fulfill his
service contract as a government scholar.
"II
Whether or not the issuance by the COMMISSION of Resolution Nos. 95-3045 and
961041, was in excess of its authority.
"III
Whether or not the COMMISSION violated the Subido-Romulo Agreement which is still
in force and effect.
"IV
Whether or not the express repeal of the old law had the effect of doing away with the
policy of automatic dropping from the government service in favor of notice before
dropping.
"V
Whether or not Section 33 of Rule XVI is ultra vires as it does not relate or is not in any
way connected with any specific provision of R.A. No. 2260.
"VI
Whether or not Resolution No. 95-3045 violated Dr. de Torres' constitutional right to due
process."
In the main, the issue is the validity of Dr. Alfredo de Torres automatic separation from the civil
service due to his prolonged absence without official leave.
The Court's Ruling
The Petition is meritorious.
Main Issue:
Validity of Automatic Separation from the Civil Service
In brief, petitioners argue that (1) the issuance of a new appointment in favor of Petitioner De
Torres is not needed, because he was not formally dropped from the rolls of the University of the
Philippines; (2) the assailed CSC Resolutions were issued in excess of authority, because the
CSC had violated the Subido-Romulo Agreement and disregarded the University's academic
freedom, which includes the right to determine who may teach and who may be dropped dropped
from the service; (3) Section 33, Rule XVI of the Revised Civil Service Rules based on which
respondent justified Petitioner De Torres' automatic separation from the service has been
repealed and superseded by PD 807, as well as by EO 292 (Administrative Code of 1987) which
decrees prior notice before actual dropping; (4) even assuming that the said provision was not
repealed, the issuance of the Ruel was ultra vires because it was not related or connected to any
specific provision of the mother law, RA 2260; and (5) the assailed CSC Resolutions violated
petitioner's right to due process, because he had not been given prior notice of his actual
separation.
On the other hand, respondent, through the solicitor general, contends that (1) "[I]t is of no legal
moment that petitioner De Torres' name is still listed in the rolls of UPLB faculty members since
his mandatory separation from the government service was ipso jure upon his failure to report
for duty within the period prescribed by his superior"; (2) the new Civil Service Rules did not
repeal but complement Section 33, Rule XVI of the Revised Civil Service Rules, with the
additional provision on notice of actual dropping; (3) Section 33 was a valid exercise by the CSC
of its rule-making power to discipline erring employees of the civil service; and (4) sufficiently
constituting due notice of his separation from the service were the denial of Petitioner De Torres'
request for an extension of his leave of absence, coupled with the advice for him to report for
work and the UPLB Chancellor's subsequent letter informing him that in case he failed to report
within thirty (30) days, he would be dropped from the rolls of its personnel.
We now rule on these arguments. The Civil Service Commission predicated its ruling on Section
33, Rule XVI of the Revised Civil Service Rules, which was in effect at the time. The provision
states:
"Under no circumstances shall leave without pay be granted for more than one year. If an
employee who is on leave without pay for any reason fails to return to duty at the
expiration of one year from the effective date of such leave, he shall be considered
automatically separated from the service; Provided, that he shall, within a reasonable time
before the expiration of his one year leave of absence without pay, be notified in writing
of the expiration thereof with a warning that if he fails to report for duty on said date, he
will be dropped from the service."
According to respondent, this provision speaks of automatic separation from the service, even
without prior notice and hearing. It extensively cites Quezon v. Borromeo,
9
which supposedly
held that the absence of notice to or investigation of the erring employee "is not jurisdictional in
cases involving Section 33, Rule XVI of the Revised Civil Service Rules."
The case cited involved the chief nurse of the Iligan City Hospital who had initially been
authorized to go on special study detail to take up or complete a degree in nursing for a period of
not more than twelve (12) months. Afterwards, she requested two extensions of her leave, which
were both granted, albeit charged to her accumulated leave credits and, after exhaustion thereof,
without pay. Her extended leave totaled nineteen (19) months. Subsequently, she sought a third
extension of leave, which was, however, not acted upon by the authorities. Notwithstanding the
lack of approval, she remained on leave and further requested a fourth extension. By indorsement
of the regional director, this fourth request was disapproved, with the statement that her
continuous leave of absence was in violation of Section 33, Rule XVI of the Civil Service Rules.
Subsequently, an appointment was issued to another person as chief nurse.
More than two years after the expiration of her last approved leave, the petitioner reported for
duty, but she was informed that she had been dropped from government service. The Court held
that she had automatically been dropped from the service after failing to return to work at the end
of her approved leave. With respect to the lack of written notice of the impending expiration of
her leave, with a warning that she would be dropped from the service if she failed to report for
duty upon such expiration, the Court adverted to an earlier case, Isberto v. Raquiza.
10
In that case,
the Court held that the employee, who had been absent without official leave, ought to have
known that he was deemed automatically separated from the service from the time his approved
leave expired. The High Court pointed out that he was not excused by his ignorance of the rule
providing for automatic separation from the service upon failure to return to work after the lapse
of the leave of absence without pay.
The Court also referred to Ramo v. Elefao,
11
which had sustained the dropping of the petitioner
from the service for her failure to return to duty after the expiration of her leave of absence. The
letter disapproving her request for extension of leave on the ground of Section 33, Rule XVI was
communicated to her "for her information and compliance" only after her leave had already
expired.
The core of the holdings in the above-cited cases was whether the absence of prior written notice
by the appropriate government agency would prevent the dropping of the employee concerned
from the service. The Court held that under the rules then prevailing, such absence did not.
This issue, however, is not determinative of the present case. There is no question that the UPLB
Chancellor had advised petitioner on the Civil Service Rules regarding leaves. The former
warned the latter of the possibility of being considered on AWOL (absence without leave) and of
being dropped from the service, if he failed to return and report for duty upon the expiration of
his authorized leave. Consistent with the cases discussed above, these action constituted
sufficient notice.
The pivotal issue herein, however, is whether petitioner was indeed dropped from the service by
the University. By respondent's contention, Section 33 of Rule XVI automatically operates; thus,
whether or not to give effect to the provision is not within the discretion of the government
agency concerned.
We do not agree, insofar as institutions of higher learning are concerned. In the three cases
mentioned earlier, the concerned employees were actually dropped from the rolls by their
respective agencies. As a matter of fact, in Quezon, the petitioner-employee was replaced by a
new appointee. In Isberto, the petitioner-employee's position had initially been declared vacant,
then filled up by another. Also, in Ramo the school's board of trustees passed a Resolution
dropping the petitioner from the service for her failure to return to duty after the expiration of her
leave of absence; it then passed another Resolution appointing her replacement.1wphi1.nt
In the case at bar, however, Petitioner De Torres was never actually dropped from the service by
UP. He remained in the UPLB's roll of academic personnel, even after he had been warned of the
possibility of being dropped from the service if he failed to return to work within a stated period.
Indeed, as Vice Chancellor for Academic Affairs Emiliana N. Bernardo explained to the CSC in
her October 12, 1994 letter:
12
"UPLB records show that no notice or order of dropping Dr. de
Torres from the rolls was ever issued by the UPLB Chancellor. On the contrary, UPLB records
show that his salary was increased several times during his absence on January 1, 1988, March
16, 1988, and July 1, 1989. His appointment was also reclassified with promotion in rank from
Training Specialist II to Assistant Professor IV effective March 16, 1988. This promotion was
approved by the UP Board of Regents during its 1015
th
meeting held on August 25, 1988."
Verily, these acts are clearly inconsistent with separation or dropping from the service. Private
petitioner was not only retained in the roll of personnel; his salary was even increased three times.
Moreover, he was promoted in rank with the explicit approval of the Board of Regents, the
highest governing body of UP.
13
Since the commencement of the Complaint before the CSC, the
University has consistently stood by his side. When respondent ruled against him in its assailed
Resolution No. 95-3045, the University promptly filed a Motion for Reconsideration favoring his
cause. Then, UP joined Dr. De Torres in his appeal before the Court of Appeals, as well as in the
Petition now before us. All these circumstances indubitably demonstrate that the University has
chosen not to exercise its prerogative of dismissing petitioner from its employ.
UP's actuations, in spite of Section 33, Rule XVI of the Revised Civil Service Rules, are
consistent with the exercise of its academic freedom. We have held time and again that "the
University has the academic freedom to determine for itself on academic grounds who may teach,
what may be taught, how it shall be taught, and who may be admitted to study."
14
Clearly, this
freedom encompasses the autonomy to choose who should teach
15
and, concomitant therewith,
who should be retained in its rolls of professors and other academic personnel. This Court
declared in Ateneo de Manila University v. Capulong: "As corporate entities, educational
institutions of higher learning are inherently endowed with the right to establish their policies,
academic and otherwise, unhampered by external controls or pressure."
16
Similarly, Vicente G.
Sinco, a former UP president and delegate to the 1973 Constitutional Convention, stressed that
the Constitution "definitely grants the right of academic freedom to the University as an
institution as distinguished from the academic freedom of a university professor."
17

We are not unaware that academic freedom has been traditionally associated with freedom of
thought, speech, expression and the press.
18
But, as explained by Constitutional Commissioner
Adolfo S. Azcuna during the deliberations on Section 5 (2), Article XIV
19
of the 1987
Constitution, "[s]ince academic freedom is a dynamic concept, we want to expand the frontiers
of freedom, especially in education, therefore, we shall leave it to the courts to develop further
the parameters of academic freedom."
20

Thus, we hold that by opting to retain private petitioner and even promoting him despite his
absence without leave, the University was exercising its freedom to choose who may teach or,
more precisely, who may continue to teach in its faculty. Even in the light of the provision of the
Revised Civil Service Law, the Respondent CSC had no authority to dictate to UP the outright
dismissal of its personnel. The former could not have done so without trampling upon the latter's
constitutionally enshrined academic freedom. Moreover, in Chang v. Civil Service
Commission,
21
the Court stressed that "[t]he CSC is not a co-manager, or surrogate administrator
of government offices and agencies. Its functions and authority are limited to approving or
reviewing appointments to determine their concordance with the requirements of the Civil
Service Law." In short, on its own, the CSC does not have the power to terminate employment or
to drop workers from the rolls.
Needless to say, UP definitely recognizes and values petitioner's academic expertise. As the vice
chancellor for academic affairs explained, "[d]ropping him from the rolls will utterly be a waste
of government funds and will not serve the best interest of the country which is suffering from
'brain-drain'."
22
Even UP President Emil Q. Javier advised Complainants Baskias and Medina to
"give Dr. de Torres the opportunity to honor his service obligation to the University,"
23
referring
to petitioner's required return service in view of a fellowship abroad earlier granted him by the
institution.
Consequently, there is no need for the issuance of a new appointment in favor of Dr. De Torres.
His service in UP is deemed uninterrupted during his tenure at CIRDAP.
WHEREFORE, the Petition is hereby GRANTED. The assailed Decision of the Court of
Appeals and the Respondent Civil Service Commission's Resolution Nos. 95-3045 and 96-1041
are SET ASI DE. No costs.
SO ORDERED.

APPOINTMENTS TO CIVIL SERVICE
ARTICLE IX B SEC. 2 (2) CONSTITUTION
2. Appointments in the civil service shall be made only according to merit and fitness to be
determined, as far as practicable, and, except to positions which are policy-determining,
primarily confidential, or highly technical, by competitive examination.

PAGCOR VS RILLORAZA
G.R. No. 141141 June 25, 2001
PHILIPPINE AMUSEMENT AND GAMING CORPORATION (PAGCOR), petitioner,
vs. CARLOS P. RILLORAZA, respondent.
DE LEON, JR., J .:
Before us is a petition for review on certiorari praying for the reversal of the Decision dated
August 31, 1999
1
as well as the Resolution dated November 29, 1999, rendered by the Court of
Appeals in CA-G.R. SP No. 51803.
The facts are undisputed:
On November 5, 1997, administrative charges for dishonesty, grave misconduct, conduct
prejudicial to the best interest of the service, and loss of confidence, were brought against
respondent Carlos P. Rilloraza, a casino operations manager of petitioner PHILIPPINE
AMUSEMENT AND GAMING CORPORATION (PAGCOR). Respondent allegedly
committed the following acts:
Summary description of charge(s):
Failure to prevent an irregularity and violations of casino and regulations committed by
co-officers during his shift on October 9, 1997.
1. During his shift of 6:00 a.m.2:00 p.m. on October 9, 1997, four (4) personal
checks with a total value of Pesos: Five Million (P5,000,000) were issued by a
small-time financier/player and were facilitated by a COM with the Treasury
Division which enabled the small-time financier/player to withdraw and receive
said amount. The facilitation of the checks was not authorized by the Senior
Branch Manager (SBM) or the Branch Manager for Operations (BMO) and the
COM who facilitated the checks was not on duty then.
2. He even facilitated one (1) of the personal checks with a value of Pesos: Five
Hundred Thousand (P500,000.00).
3. He failed to stop a top-ranking officer from placing bets over and above the
allowable limit of P5,000.00 per deal, he failed to stop the same officer from
playing in the big tables and lastly, he allowed the same officer to play beyond the
allowable time limit of 6:00 a.m.
Respondent duly filed his answer during an investigation conducted by petitioners Corporate
Investigation Unit. He narrated the events that transpired:
"When I reported for my 6:00 a.m. to 2:00 p.m. shift, on October 9, that morning I saw
BM RICHARD SYHONGPAN beside TABLE #22 (BB) sitting at a coffee table inside
Area 3. While inside the Area 3, GAM RENE QUITO approached me with a check worth
P500,000.00 requested by a customer for endorsement to the Treasury. Since Ive been
out of Manila branch for 2 years and Ive just been recalled to this branch for only more
than 3 weeks, Im not quite familiar with the systems and I dont know this customer. I
immediately approached COM CARLOS GONZALES, who at that time was still around,
to verify regarding the said check and his immediate reply was "ITS OKAY AND
GOOD AND IT WAS GUARANTEED BY BM SYHONGPAN. In fact, I reconfirmed
it again with COM GONZALES since he is more familiar with the systems and
customers, he answered me the same. So I gave the approval to GAM QUITO for
endorsement. When I went in the office, I instructed OOS GILBERT CABANA to beep
SBM VIC ADVINCULA and BMO DARIO CORDERO to call office "ASAP" because I
wanted to relay this matter to them and there were no reply from both of them. I
instructed OOS CABANA to send messages again to SBM & BMO, but still I received
no reply. It was until after noontime that BMO CORDERO returned my call and I
reported the incident to him. When I was at home at around 3:30 p.m. SBM
ADVINCULA returned my call and I reported the incident. I also relayed the incident to
SBM REYES.
While during my rounds, I went down to the New VIP area and there I saw BM
SYHONGPAN sitting at TABLE #3(BB) and he was holding house cards at that time. I
approached and stopped him but he reacted that the bet was not his but to a
CUSTOMERS. I took his words because as a subordinate, I respected him as one of our
superior who very well know all our companys policy esp. that an officer is not allowed
to play at BIG table and are only allowed to bet with a maximum of P5,000.00 only. So I
believe it was not his bet but the said customer. At that time there was no way for me to
stop the game because I saw the said customer, named MS. CORAZON CASTILLO,
whom I dont know her [sic] since I was out of Manila Branch 2 years, and whom BM
SYHONGPAN was referring to as the player, has a lot of chips worth about P7 Million in
front of her and was betting P1.5M on the banker side which was over the maximum
table limit by P500,000.00. I know we are allowed to authorize approval by raising the
betting limits as per request of the playing customers.
After the game, the chips were encashed and I instructed GAM J. EUGENIO to
accompany BM SYHONGPAN to his room because he was too drunk. When I was doing
my rounds again, thats how I found out from rumors within the gaming areas that this
MS. CASTILLO was used by BM SYHONGPAN and COM GONZALES to played [sic]
in behalf of them the whole time. And I also learned that there were four checks endorsed
during my shift which I facilitated only one check worth P500,000.00 after I verified and
confirmed it with COM GONZALES. With regards to the other 3 checks, I have no
knowledge about it since they, BM SYHONGPAN and COM GONZALES, kept it a
secret from me. When GAM EUGENIO returned from the room of BM SYHONGPAN
he handed me some cash, which according to him, was given by BM SYHONGPAN as
BALATO. I did not accept the money because at that moment I was so mad that they
involved me beyond my innocence since I am new in the branch. I then instructed GAM
EUGENIO to return the money to BM SYHONGPAN. (sic)
Finding Rillorazas explanation unsatisfactory, the PAGCOR Board handed down a Resolution
on December 2, 1997 dismissing respondent and several others from PAGCOR, on the grounds
of dishonesty, grave misconduct and/or conduct prejudicial to the best interest of the service and
loss of confidence, effective December 5, 1997. The Board also denied respondents motion for
reconsideration in a Resolution dated December 16, 1997.
Respondent appealed to the Civil Service Commission. On November 20, 1998, the Commission
issued Resolution No. 983033,
2
the dispositive portion of which provides, to wit:
WHEREFORE, the appeal of Carlos P. Rilloraza is hereby dismissed. However, the
Commission finds appellant guilty only of Simple Neglect of Duty and metes out upon
him the penalty of one month and one day suspension. The assailed Resolution of
PAGCOR Board of Directors is thus modified.
The Commission denied petitioners motion for reconsideration in Resolution No. 990465 dated
February 16, 1999.
3

On appeal, the Court of Appeals affirmed the resolution of the Commission.
4
The appellate court
ordered petitioner to reinstate private respondent with payment of full backwages plus all tips,
bonuses and other benefits accruing to his position and those received by other casino operations
managers for the period starting January 5, 1998 until his actual reinstatement. Petitioner filed a
motion for reconsideration,
5
which was denied by the appellate court in the assailed resolution of
November 29, 1999.
6

Hence, the instant petition.
PAGCOR avers that:
I
THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED AND REFUSED
TO CONSIDER THAT RESPONDENT WAS A CONFIDENTIAL APPOINTEE OR
EMPLOYEE WHOSE TERM HAD EXPIRED BY REASON OF LOSS OF
CONFIDENCE.
II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT AFFIRMED THE CSC
RESOLUTIONS MODIFYING THE PENALTY METED OUT ON RESPONDENT
FROM DISMISSAL TO SUSPENSION, DESPITE THE GRAVITY OR
SERIOUSNESS OF THE OFFENSES COMMITTED BY THE LATTER ON
ACCOUNT OF THE EXTRAORDINARY RESPONSIBILITIES AND DUTIES
REPOSED IN THE RESPONDENT BY VIRTUE OF HIS POSITION.
The wellspring of stability in government service is the constitutional guarantee of entrance
according to merit and fitness and security of tenure, viz:
xxx xxx xxx
(2) Appointments in the civil service shall be made only according to merit and fitness to
be determined, as far as practicable, and, except to positions which are policy-
determining, primarily confidential, or highly technical, by competitive examination.
(3) No officer or employee of the civil service shall be removed or suspended except for
cause provided by law.
7

xxx xxx xxx
In the case at bar, we are basically asked to determine if there is sufficient cause to warrant the
dismissal, not merely the suspension, of respondent who, petitioner maintains, occupies a
primarily confidential position. In this connection, Section 16 of Presidential Decree No. 1869
8

provides:
Exemption.All positions in the Corporation, whether technical, administrative,
professional or managerial are exempt from the provisions of the Civil Service Law, rules
and regulations, and shall be governed only by the personnel management policies set by
the Board of Directors. All employees of the casinos and related services shall be
classified as "Confidential" appointee.
Petitioner argues that pursuant to the aforequoted provision, respondent is a primarily
confidential employee. Hence, he holds office at the pleasure of the appointing power and may
be removed upon the cessation of confidence in him by the latter. Such would not amount to a
removal but only the expiration of his term. However, there should be no lingering doubt as to
the true import of said Section 16 of P.D. No. 1869. We have already definitively settled the
same issue in Civil Service Commission v. Salas,
9
to wit:
In reversing the decision of the CSC, the Court of Appeals opined that the provisions of
Section 16 of Presidential Decree No. 1869 may no longer be applied in the case at bar
because the same is deemed to have been repealed in its entirety by Section 2(1), Article
IX-B of the 1987 Constitution. This is not completely correct. On this point, we approve
the more logical interpretation advanced by the CSC to the effect that "Section 16 of PD
1869 insofar as it exempts PAGCOR positions from the provisions of Civil Service Law
and Rules has been amended, modified or deemed repealed by the 1987 Constitution and
Executive Order No. 292 (Administrative Code of 1987).
However, the same cannot be said with respect to the last portion of Section 16 which
provides that "all employees of the casino and related services shall be classified as
confidential appointees." While such executive declaration emanated merely from the
provisions of Section 2, Rule XX of the Implementing Rules of the Civil Service Act of
1959, the power to declare a position as policy-determining, primarily confidential or
highly technical as defined therein has subsequently been codified and incorporated in
Section 12(9), Book V of Executive Order No. 292 or the Administrative Code of 1987.
This later enactment only serves to bolster the validity of the categorization made under
Section 16 of Presidential Decree No. 1869. Be that as it may, such classification is not
absolute and all-encompassing.
Prior to the passage of the aforestated Civil Service Act of 1959, there were two
recognized instances when a position may be considered primarily confidential: Firstly,
when the President, upon recommendation of the Commissioner of Civil Service, has
declared the position to be primarily confidential; and, secondly, in the absence of such
declaration, when by the nature of the functions of the office there exists "close intimacy"
between the appointee and appointing power which insures freedom of intercourse
without embarrassment or freedom from misgivings of betrayals of personal trust or
confidential matters of state.
At first glance, it would seem that the instant case falls under the first category by virtue
of the express mandate under Section 16 of Presidential Decree No. 1869. An in-depth
analysis, however, of the second category evinces otherwise.
When Republic Act No. 2260 was enacted on June 19, 1959, Section 5 thereof provided
that "the non-competitive or unclassified service shall be composed of positions expressly
declared by law to be in the non-competitive or unclassified service or those which are
policy-determining, primarily confidential, or highly technical in nature." In the case of
Piero, et al. vs. Hechanova, et al., the Court obliged with a short discourse there on how
the phrase "in nature" came to find its way into the law, thus:
"The change from the original wording of the bill (expressly declared by law x x x
to be policy-determining, etc.) to that finally approved and enacted (or which are
policy determining, etc. in nature) came about because of the observations of
Senator Taada, that as originally worded the proposed bill gave Congress power
to declare by fiat of law a certain position as primarily confidential or policy-
determining, which should not be the case. The Senator urged that since the
Constitution speaks of positions which are primarily confidential, policy-
determining or highly technical in nature, it is not within the power of Congress
to declare what positions are primarily confidential or policy-determining. It is
the nature alone of the position that determines whether it is policy-determining
or primarily confidential. Hence, the Senator further observed, the matter should
be left to the proper implementation of the laws, depending upon the nature of
the position to be filled, and if the position is highly confidential then the
President and the Civil Service Commissioner must implement the law.
To a question of Senator Tolentino, But in positions that involved both
confidential matters and matters which are routine, x x x who is going to
determine whether it is primarily confidential? Senator Taada replied:
SENATOR TAADA: Well, at the first instance, it is the appointing
power that determines that: the nature of the position. In case of conflict
then it is the Court that determines whether the position is primarily
confidential or not." xxx
Hence the dictum that, at least since the enactment of the Civil Service Act of 1959, it is
the nature of the position which finally determines whether a position is primarily
confidential, policy-determining or highly technical. And the Court in the aforecited case
explicitly decreed that executive pronouncements, such as Presidential Decree No. 1869,
can be no more than initial determinations that are not conclusive in case of conflict. It
must be so, or else it would then lie within the discretion of the Chief Executive to deny to
any officer, by executive fiat, the protection of Section 4, Article XII (now Section 2[3],
Article IX-B) of the Constitution. In other words, Section 16 of Presidential Decree No.
1869 cannot be given a literally stringent application without compromising the
constitutionally protected right of an employee to security of tenure. [italics supplied]
The doctrinal ruling enunciated in Piero finds support in the 1935 Constitution and was
reaffirmed in the 1973 Constitution, as well as in the implementing rules of Presidential
Decree No. 807, or the Civil Service Decree of the Philippines. It may well be observed
that both the 1935 and 1973 Constitutions contain the provision, in Section 2, Article XII-
B thereof, that "appointments in the Civil Service, except as to those which are policy-
determining, primarily confidential, or highly technical in nature, shall be made only
according to merit and fitness, to be determined as far as practicable by competitive
examination." Corollarily, Section 5 of Republic Act No. 2260 states that "the non-
competitive or unclassified service shall be composed of positions expressly declared by
law to be in the non-competitive or unclassified service or those which are policy-
determining, primarily confidential, or highly technical in nature." Likewise, Section 1 of
the General Rules in the implementing rules of Presidential Decree No. 807 states that
"appointments in the Civil Service, except as to those which are policy-determining,
primarily confidential, or highly technical in nature, shall be made only according to
merit and fitness to be determined as far as practicable by competitive examination." Let
it be here emphasized, as we have accordingly italicized them, that these fundamental
laws and legislative or executive enactments all utilized the phrase "in nature" to describe
the character of the positions being classified.1wphi1.nt
The question that may now be asked is whether the Piero doctrineto the effect that
notwithstanding any statutory classification to the contrary, it is still the nature of the
position, as may be ascertained by the court in case of conflict, which finally determines
whether a position is primarily confidential, policy-determining or highly technicalis
still controlling with the advent of the 1987 Constitution and the Administrative Code of
1987, Book V of which deals specifically with the Civil Service Commission,
considering that from these later enactments, in defining positions which are policy-
determining, primarily confidential or highly technical, the phrase "in nature" was deleted.
We rule in the affirmative. The matter was clarified and extensively discussed during the
deliberations in the plenary session of the 1986 Constitutional Commission on the Civil
Service provisions, to wit:
"MR. FOZ: Which department of government has the power or authority to
determine whether a position is policy-determining or primarily confidential or
highly technical?
FR. BERNAS: The initial decision is made by the legislative body or by the
executive department, but the final decision is done by the court. The Supreme
Court has constantly held that whether or not a position is policy-determining,
primarily confidential or highly technical, it is determined not by the title but by
the nature of the task that is entrusted to it. For instance, we might have a case
where a position is created requiring that the holder of that position should be a
member of the Bar and the law classifies this position as highly technical.
However, the Supreme Court has said before that a position which requires mere
membership in the Bar is not a highly technical position. Since the term highly
technical means something beyond the ordinary requirements of the profession, it
is always a question of fact.
MR. FOZ: Does not Commissioner Bernas agree that the general rule should be
that the merit system or the competitive system should be upheld?
FR. BERNAS: I agree that that should be the general rule; that is why we are
putting this as an exception.
MR. FOZ: The declaration that certain positions are policy-determining, primarily
confidential or highly technical has been the source of practices which amount to
the spoils system.
FR. BERNAS: The Supreme Court has always said that, but if the law of the
administrative agency says that a position is primarily confidential when in fact it
is not, we can always challenge that in court. It is not enough that the law calls it
primarily confidential to make it such; it is the nature of the duties which makes a
position primarily confidential.
MR. FOZ: The effect of a declaration that a position is policy-determining,
primarily confidential or highly technicalas an exceptionis to take it away
from the usual rules and provisions of the Civil Service Law and to place it in a
class by itself so that it can avail itself of certain privileges not available to the
ordinary run of government employees and officers.
FR. BERNAS: As I have already said, this classification does not do away with
the requirement of merit and fitness. All it says is that there are certain positions
which should not be determined by competitive examination.
For instance, I have just mentioned a position in the Atomic Energy Commission. Shall
we require a physicist to undergo a competitive examination before appointment? Or a
confidential secretary or any position in policy-determining administrative bodies, for
that matter? There are other ways of determining merit and fitness than competitive
examination. This is not a denial of the requirement of merit and fitness."
It is thus clearly deducible, if not altogether apparent, that the primary purpose of the
framers of the 1987 Constitution in providing for the declaration of a position as policy-
determining, primarily confidential or highly technical is to exempt these categories from
competitive examination as a means for determining merit and fitness. It must be stressed
further that these positions are covered by security of tenure, although they are
considered non-competitive only in the sense that appointees thereto do not have to
undergo competitive examinations for purposes of determining merit and fitness. [italics
supplied]
In fact, the CSC itself ascribes to this view as may be gleaned from its questioned
resolution wherein it stated that "the declaration of a position as primarily confidential if
at all, merely exempts the position from the civil service eligibility requirement."
Accordingly, the Piero doctrine continues to be applicable up to the present and is
hereby maintained. Such being the case, the submission that PAGCOR employees have
been declared confidential appointees by operation of law under the bare authority of
CSC Resolution No. 91-830 must be rejected.
Justice Regalados incisive discourse yields three (3) important points: first, the classification of
a particular position as primarily confidential, policy-determining or highly technical amounts to
no more than an executive or legislative declaration that is not conclusive upon the courts, the
true test being the nature of the position. Second, whether primarily confidential, policy-
determining or highly technical, the exemption provided in the Charter pertains to exemption
from competitive examination to determine merit and fitness to enter the civil service. Such
employees are still protected by the mantle of security of tenure. Last, and more to the point,
Section 16 of P.D. 1869, insofar as it declares all positions within PAGCOR as primarily
confidential, is not absolutely binding on the courts.
Considerations vary so as to make a position primarily confidential. Private secretaries are
indisputably primarily confidential employees.
10
Those tasked to provide personal security to
certain public officials have also been deemed to hold primarily confidential positions
11
for
obvious reasons: the former literally are responsible for the life and well-being of the latter.
Similar treatment was accorded to those occupying the posts of city legal officer
12
and provincial
attorney,
13
inasmuch as the highly privileged nature of the lawyer-client relationship mandates
that complete trust and confidence must exist betwixt them. National interest has also been
adjudged a factor, such that the countrys permanent representative to the United Nations was
deemed to hold her post at the pleasure of the Chief Executive.
14

As casino operations manager, Rillorazas duties and responsibilities are:
JOB SUMMARY: The Casino Operations Manager directs, controls and supervises the
Operations Division of the branch. He reports directly to the Branch Manager or to the
Branch Manager for Operations in Metro Manila branches.
DUTIES AND RESPONSIBILITIES:
1. Formulates marketing programs and plans of action for branch gaming
operations in order to optimize revenue.
2. Institutes and maintains a healthy, organized, mentally alert, and highly
motivated human resource for effective and efficient branch gaming operations
performance.
3. Takes measures to maintain and uphold the integrity of the casino games.
4. Reviews, analyzes, and evaluates gaming table and slot machine operations
reports, including income performance.
5. Submits periodic reports to the Branch Manager.
6. Directs the opening and closing of gaming table and slot machine areas.
7. Directs the setting-up, closure or suspension of operations of gaming tables and
slot machine units when deemed necessary.
8. Controls the requisition, storage, and issuance of playing cards, gaming
equipment and paraphernalia, operations keys, and accountable receipts and slips.
9. Ensures that gaming operations personnel adhere to the established House
Rules, company policies and procedures.
10. Ensures that quality and efficient service is extended to casino patrons in
accordance with the established House Rules, company policies and procedures.
11. Directs and controls all activities of the Card Shuffling Center and the Card
Distribution Room.
12. Issues directives, memoranda, and other official communications on branch
gaming operations matters.
13. Directs the daily and periodic performance evaluation of operations personnel.
14. Requires written statements from operations personnel regarding disputes,
reported irregularities and violations of House Rules, company policies and
procedures.
15. Issues or recommends disciplinary sanctions against delinquent operations
personnel, as well as commendations to deserving ones.
16. Upon the Branch Managers approval, issues preventive suspension to erring
employees pending investigation.
17. Effects immediate changes in House Rules when deemed necessary, subject to
management review.
18. Approves table refill, chip yield, and dropbox yield transactions, as well as the
payment for progressive link super jackpot awards.
19. Directs the cancellation of progressive link super jackpot combinations.
20. Signs chip checks in behalf of the Branch Manager.
21. Approves complimentary food and beverages to deserving players and
evaluates the same for the possible extension of other amenities.
22. Settles disputes arising from gaming operations that have not been effectively
settled by gaming managers and supervisors, and enforces decisions on the
interpretation of House Rules, company policies, and procedures.
23. Recommends to the Branch Manager the banning of undesirable players.
24. Orders the removal of customers or employees from the table gaming (sic)
and slot machine area for justifiable reasons.
25. Implements contingency plans in case of emergencies to ensure the security
and safety of customers and staff.
26. Acts on customer complaints, suggestions, and observations.
27. Chairs the Branch Infractions Committee, the Variance Committee, and other
ad hoc committees of the Operations Division.
28. Represents the Operations Division in Branch Management panel meetings.
29. Apprises the Branch Manager of any incident of doubtful nature and of
developments that require his immediate attention.
30. Performs other duties as may be designated by the Branch Manager.
Undoubtedly, respondents duties and responsibilities call for a great measure of both ability and
dependability. They can hardly be characterized as routinary, for he is required to exercise
supervisory, recommendatory and disciplinary powers with a wide latitude of authority. His
duties differ markedly from those we previously ruled as not primarily confidential: for instance,
PAGCORs Internal Security Staff;
15
Management and Audit Analyst I of the Economic
Intelligence and Investigation Bureau;
16
a Special Assistant to the Governor of the Central
Bank;
17
the Legal Staff of the Provincial Attorney;
18
members of the Customs Police;
19
the
Senior Executive Assistant, Clerk I, Supervising Clerk I and Stenographer;
20
and a Provincial
Administrator.
21
In this sense, he is a tier above the ordinary rank-and-file in that his
appointment to the position entails faith and confidence in his competence to perform his
assigned tasks. Lacking, therefore, is that amplitude of confidence reposed in him by the
appointing power so as to qualify his position as primarily confidential. Verily, we have
observed that:
[i]ndeed, physicians handle confidential matters. Judges, fiscals and court stenographers
generally handle matters of similar nature. The Presiding and Associate Justices of the
Court of Appeals sometimes investigate, by designation of the Supreme Court,
administrative complaints against judges of first instance, which are confidential in nature.
Officers of the Department of Justice, likewise, investigate charges against municipal
judges. Assistant Solicitors in the Office of the Solicitor General often investigate
malpractice charges against members of the Bar. All of these are "confidential" matters,
but such fact does not warrant the conclusion that the office or position of all government
physicians and all Judges, as well as the aforementioned assistant solicitors and officers
of the Department of Justice are primarily confidential in character.
22

We further note that a casino operations manager reports directly to the Branch Manager or, in
Metro Manila branches, to the Branch Manager for Operations. It does not appear from the
record to whom the Branch Manager (or the Branch Manager for Operations, as the case may be)
reports. It becomes unmistakable, though, that the stratum separating the casino operations
manager from reporting directly to the higher echelons renders remote the proposition of
proximity between respondent and the appointing power. There is no showing of that element of
trust indicative of a primarily confidential position, as we defined it in De los Santos v.
Mallare,
23
to wit:
Every appointment implies confidence, but much more than ordinary confidence is
reposed in the occupant of a position that is primarily confidential. The latter phrase
denotes not only confidence in the aptitude of the appointee for the duties of the office
but primarily close intimacy which insures freedom of intercourse without
embarrassment or freedom from misgivings of betrayals of personal trust or confidential
matters of state.
Necessarily, the point of contention now is whether there was cause for the respondents
separation from the service. On this point, having analyzed both parties arguments, we find that
the Civil Service Commission did not err in declaring that Rilloraza was liable only for simple
neglect of duty. In the first place, there is no evidence to sustain a charge of dishonesty. As the
latter term is understood, it implies a:
Disposition to lie, cheat, deceive, or defraud; untrustworthiness; lack of integrity. Lack of
honesty, probity or integrity in principle; lack of fairness and straightforwardness;
disposition to defraud, deceive or betray.
24

In the case at bar, respondents explanation fails to evince an inclination to lie or deceive, or that
he is entirely lacking the trait of straightforwardness. We concur with the appellate courts
finding, thus:
Available proof unmistakably demonstrate that upon seeing BM Syhongpan playing at
Table No. 3BB, respondent Rilloraza at once, told him to stop. However, Syhongpan
explained that he was merely playing for a customer, Ms. Corazon Castillo who was
seated also at the table. After observing the large number of chips in front of Ms. Castillo
estimated at around P7M, respondent became convinced of the clarification given by
Branch Manager Syhongpan and he must have relied also on the word of said top ranking
PAGCOR official whose representation must ordinarily be accepted and accorded respect
and credence by a subordinate like him. xxx
More importantly, the PAGCOR Adjudication Committee concluded that respondent
actually attempted to stop the game where Syhongpan was playing which was even
utilized as basis by the PAGCOR Board in dismissing respondent. xxx
xxx xxx xxx xxx
The allegation that respondent Rilloraza allowed Syhongpan to place bets over and above
the allowable limit of P5,000.00 per deal is not anchored on a correct premise.
Respondent Rilloraza has steadfastly maintained that he is of the belief that BM
Syhongpan is not playing for himself but for Ms. Castillo. Thus, if Syhongpan is merely
acting for the real casino player, then the policy of not allowing any PAGCOR official to
bet beyond P5,000.00 has no application. Respondent Rilloraza believed in good faith
that the bet was not BM Syhongpans but of Ms. Castillo and should not be unduly
punished for his honest belief. The same reason exists for the claim that respondent
allowed BM Syhongpan to play beyond 6:00 a.m. This is non sequitur since Rilloraza
never entertained the idea that Syhongpan was the gambler.
Lastly, if only to consummate respondents alleged dishonesty and grave misconduct by
corruptly profiting from said incident, he could have easily pocketed the balato given by
Syhongpan, but he never did, and in fact, returned the money. xxx
xxx xxx xxx xxx
On the facilitation of the swap of a P500,000.00 personal check for chips, this Court,
after considering the parties involved and the circumstances of the case, believes that
respondent Rilloraza has judiciously performed all the acts necessary to protect the
interests of PAGCOR and has acted as a prudent and reasonable man. It is evident that
respondent had the authority to approve the exchange of checks for gambling chips. In
the exercise of such discretion, We find that the approval by Rilloraza of the exchange
was done with caution and circumspect [sic]. When he was approached by GAM Quito
for endorsement of said personal checks per request of a customer, he immediately
approached COM Gonzales to verify the check who assured him that the check was good
and in fact guaranteed by Mr. Syhongpan, Davao City Branch Manager of PAGCOR. To
be sure, he even reconfirmed the same with Gonzales as he is more familiar with the
systems and the customers since he has been recalled to the branch for only three (3)
weeks. After approving the endorsement, he immediately tried to contact SBM Advincula
and BMO Cordero, to notify them of his action but none of them called back. In the
afternoon, both returned the call and were informed by respondent of the exchange of the
chips for the check and presumably, the former ratified or acquiesced to the action of
respondent since there was no objection or complaint about the matter. xxx
These same findings negate the conclusion that respondent is guilty of misconduct or conduct
prejudicial to the best interest of the service. In Manuel v. Calimag, Jr.,
25
we defined misconduct,
thus:
Misconduct in office has been authoritatively defined by Justice Tuazon in Lacson v.
Lopez in these words: "Misconduct in office has a definite and well-understood legal
meaning. By uniform legal definition, it is a misconduct such as affects his performance
of his duties as an officer and not such only as affects his character as a private individual.
In such cases, it has been said at all times, it is necessary to separate the character of the
man from the character of the officer x x x. It is settled that misconduct, misfeasance, or
malfeasance warranting removal from office of an officer, must have direct relation to
and be connected with the performance of official duties amounting either to
maladministration or willful, intentional neglect and failure to discharge the duties of the
office x x x.
Differently propounded in Canson v. Garchitorena, et al.,
26
misconduct is "any unlawful conduct
on the part of a person concerned in the administration of justice prejudicial to the rights of
parties or to the right determination of the cause. It generally means wrongful, improper or
unlawful conduct motivated by a premeditated, obstinate or intentional purpose. The term,
however, does not necessarily imply corruption or criminal intent. On the other hand, the term
gross connotes something out of all measure; beyond allowance; not to be excused; flagrant;
shameful." From the facts given, absent is that element of intent to do wrong against petitioner.
CSC Resolution No. 991936 dated August 31, 1999 classifies simple neglect of duty as a less
grave offense punishable as a first offense by suspension of one (1) month and one (1) day to six
(6) months.
27
In the imposition of the proper penalty, Section 54 thereof provides, as follows: (a)
the minimum of the penalty shall be imposed where only mitigating and no aggravating
circumstances are present; (b) the medium of the penalty shall be imposed where no mitigating
and aggravating circumstances are present; and (c) the maximum of the penalty shall be imposed
where only aggravating and no mitigating circumstances are present. In turn, the circumstances
that may be properly considered are:
Section 53. Extenuating, Mitigating, Aggravating, or Alternative Circumstances.
In the determination of the penalties to be imposed, mitigating, aggravating and
alternative circumstances attendant to the commission of the offense shall be
considered.1wphi1.nt
The following circumstances shall be appreciated:
a. Physical illness
b. Good faith
c. Taking undue advantage of official position
d. Taking undue advantage of subordinate
e. Undue disclosure of confidential information
f. Use of government property in the commission of the offense
g. Habituality
h. Offense is committed during office hours and within the premises of the office
or building
i. Employment of fraudulent means to commit or conceal the offense
j. Length of service in the government
k. Education, or
l. Other analogous circumstances
Nevertheless, in the appreciation thereof, the same must be invoked or pleaded by the
proper party, otherwise, said circumstances shall not be considered in the imposition of
the proper penalty. The Commission, however, in the interest of substantial justice may
take and consider these circumstances.
We find that the Civil Service Commission, as affirmed by the Court of Appeals, correctly
attributed good faith on the part of respondent. Accordingly, the modified penalty imposed by
the Civil Service Commission on the respondent which was affirmed by the Court of Appeals,
was proper under the premises.
WHEREFORE, the petition is hereby DENIED for lack of merit. The Decision dated August
31, 1999 as well as the Resolution dated November 29, 1999, rendered by the Court of Appeals
in CA-G.R. SP No. 51803 are hereby AFFIRMED. No costs.
SO ORDERED.
POLICY DETRMINING
PRIMARY CONFIDENTIAL
DELOS SANTOS VS MALLARE
G.R. No. L-3881 August 31, 1950
EDUARDO DE LOS SANTOS, petitioner, vs. GIL R. MALLARE, LUIS P. TORRES, in
his capacity as City Mayor, PANTALEON PIMENTEL, in his capacity as City Treasurer
and RAFAEL USON, in his capacity as City Auditor, respondents.
TUASON, J .:
This is an original action of quo warranto questioning the legality of the appointment of
respondent Gil R. Mallare to the office of city engineer for the City of Baguio which the
petitioner occupied and claims to be still occupying. The real issue however is the legality of the
petitioner's removal from the same office which would be the effect of Mallare's appointment if
the same be allowed to stand. It is the petitioner's contention that under the Constitution he can
not be removed against his will and without cause. The complaint against the other respondents
has to do merely with their recognition of Mallare as the lawful holder of the disputed office and
is entirely dependent upon the result of the basic action against the last-mentioned respondent
(Mallare).
Stripped of details unessential to the solution of the case, the facts are that Eduardo de los Santos,
the petitioner, was appointed City Engineer of Baguio on July 16, 1946, by the President,
appointment which was confirmed by the Commission on Appointments on August 6, and on the
23rd of that month, he qualified for and began to exercise the duties and functions of the position.
On June 1, 1950, Gil R. Mallare was extended an ad interim appointment by the President to the
same position, after which, on June 3, the Undersecretary of the Department of Public Works and
Communications directed Santos to report to the Bureau of Public Works for another assignment.
Santos refused to vacate the office, and when the City Mayor and the other officials named as
Mallare's co-defendants ignored him and paid Mallare the salary corresponding to the position,
he commenced these proceedings.
The petitioner rests his case on Article XII of the Constitution, section 4 of which reads: "No
officer or employee in the Civil Service shall be removed or suspended except for cause as
provided by law."
It is admitted in respondents' answer that the City Engineer of Baguio "belongs to the
unclassified service." And this Court, in an exhaustive opinion by Mr. Justice Montemayor in the
case of Lacson vs. Romero, 47 Off. Gaz., 1778, involving the office of provincial fiscal, ruled
that officers or employees in the unclassified as well as those in the classified service are
protected by the above-cited provision of the organic law. But there is this difference between
the Lacson case and the case at bar: Section 2545 of the Revised Administrative Code, which
falls under Chapter 61 entitled "City of Baguio," authorizes the Governor General (now the
President) to remove at pleasure any of the officers enumerated therein, one of whom is the city
engineer. The first question that presents itself is, is this provision still in force?
Section 2 of Article XVI of the Constitution declares that "All laws of the Philippine Islands
shall continue in force until the inauguration of the Commonwealth of the Philippines; thereafter,
such laws shall remain operative, unless inconsistent with this Constitution, until amended,
altered, modified, or repealed by the Congress of the Philippines, . . . ."
It seems plain beyond doubt that the provision of section 2545 of the Revised Administrative
Code, he (Governor-General now President) may remove at pleasure any of the said appointive
officers," is incompatible with the constitutional inhibition that "No officer or employee in the
Civil Service shall be removed or suspended except for cause as provided by law." The two
provisions are mutually repugnant and absolutely irreconcilable. One in express terms permits
what the other in similar terms prohibits.
The Constitution leaves it to the Congress to provide for the cause of removal, and it is suggested
that the President's pleasure is itself a cause. The phrase "for cause" in connection with the
removals of public officers has acquired a well-defined concept. "It means for reasons which the
law and sound public policy recognized as sufficient warrant for removal, that is, legal cause,
and not merely causes which the appointing power in the exercise of discretion may deem
sufficient. It is implied that officers may not be removed at the mere will of those vested with the
power of removal, or without any cause. Moreover, the cause must relate to and affect the
administration of the office, and must be restricted to something of a substantial nature directly
affecting the rights and interests of the public."(43 Am. Jur., 47, 48.)
Reconsideration of the decision in Lacson vs. Romero as far as officers in the unclassified service
are concerned is urged. It is contended that only officers and employees in the classified service
should be brought within the purview of Article XII of the Constitution.
Section 1 of this article ordains: "A Civil Service embracing all branches and subdivisions of the
Government shall be provided by law. Appointments in the Civil Service, except as those which
are policy-determining, primarily confidential or highly technical in nature, shall be made only
according to merit and fitness, to be determined as far as practicable by competitive
examination." The first clause is a definition of the scope of Civil Service, the men and women
which section 4 protects. It seems obvious from that definition that the entire Civil Service is
contemplated, except positions "which are policy-determining, primarily confidential or highly
technical in nature." This theory is confirmed by the enactment of Commonwealth Act No. 177
on November 30, 1936 to implement Article XII of the Constitution. Commonwealth Act No.
177 explains Civil Service almost in the identical words of that article of the organic law. As a
contemporaneous construction, this Act affords an index to the meaning of Civil Service as
conceived by the framers of the Constitution. "The principle of contemporaneous construction
may be applied to the construction given by the legislature to the constitutional provisions
dealing with legislative powers and procedure. Though not conclusive, such interpretation is
generally conceded as being entitled to great weight." (U.S. vs. Sprague, 282 U.S., 716; 75 L. ed.
640; 51 S. Ct., 220; 71 A.L.R., 1381; Den ex dem. Murray vs. Hoboken Land and Improv. Co.,
18 How. [U.S.], 272; 15 L. ed., 372; Clark vs. Boyce, 20 Ariz., 544; 185 P., 136, citing R.C.L.;
11 Am. Jur. 699.) The principle of express mention and implied exclusion may be made use of
also to drive home this point.
We are led to the same conclusion by the existing provisions at the time of the adoption of the
Constitution. Civil Service as embracing both classes of officers and employees possessed
definite legal and statutory meaning when the Constitution was approved. Section 670 of the
Revised Administrative Code already provided that "Persons in the Philippine civil service
pertain either to the classified service," and went on to say that "The classified service embraces
all not expressly declared to be in the unclassified service." Then section 671 described persons
in the unclassified service as "officers, other than the provincial treasurers and assistant directors
of bureaus or offices, appointed by the President of the Philippines, with the consent of the
Commission on Appointments of the National Assembly, and all other officers of the
government whose appointments are by law vested in the President of the Philippines alone."
The rules of the construction inform us that the words use in the constitution are to be given the
sense they have in common use. (Okanogan Indians vs. United States, 279, U.S., 665; 64 A.L.R.,
1434; 73 Law ed., 894.) It has been said that we must look to the history of the times, examine
the state of things existing when the Constitution was framed and adopted, (Rhode Islands vs.
Massachusetts, 12 Pet., 657; 9 Law ed., 1233), and interpret it in the light of the law then in
operation. (Mattox vs. United States, 156, U.S., 237; 39 Law ed., 409.)
Attention is drawn to supposed inconveniences of tying the hands of the appointing power in
changing and shifting officers in the unclassified service. "If it is argued all important
officers and employees of the government falling within the unclassified service as enumerated
in section 671 of the Revised Administrative Code as amended by Commonwealth Act No. 177,
may not be removed by the President except for cause as provided by law, . . . the President
would be seriously crippled in the discharge of the grave duty and responsibility laid upon him
by the Constitution to take care that the laws faithfully executed."
Questions of expediency are, of course, beyond the province of the court to take into account in
the interpretation of laws or of the Constitution where the language is otherwise clear. But the
argument is, we think, unsound even if the case be approached from this angle. It contains its
own refutation. The Constitution and the law implementing it afford adequate safeguards against
such consequences as have been painted.
The argument proceeds, contrary to its context, on the assumption that removes of civil service
officers and employees are absolutely prohibited, which is not the case. The Constitution
authorizes removals and only requires that they be for cause. And the occasions for removal
would be greatly diminished if the injunction of section 1 of Article XII of the Constitution
that appointments in the civil service shall be made only according to merit and fitness, to be
determined as far as practicable by competitive examination would be adhered of
meticulously in the first place.
By far greater mischiefs would be fomented by an unbridled authority to remove. Such license
would thwart the very aims of the Constitution which are expounded by Dean Aruego, himself a
member of the Constitutional Convention, in the following remarks copied with approval in
Lacson vs. Romero, supra:
The adoption of the "merit system" in government service has secured efficiency and
social justice. It eliminates the political factor in the selection of civil employees which is
the first essential to an efficient personnel system. It insures equality of opportunity to all
deserving applicants desirous of a career in the public service. It advocates a new concept
of the public office as a career open to all and not the exclusive patrimony of any party or
faction to be doled out as a reward for party service.
The "merit system" was adopted only after the nations of the world took cognizance of its
merits. Political patronage in the government service was sanctioned in 1879 by the
Constitutional right of President of the United States to act alone in the matter of
removals. From the time of Andrew Jackson the principle of the "To the victor belongs
the spoils' dominated the Federal Government. The system undermined moral values and
destroyed administrative efficiency.
Since the establishment of the American Regime in the Philippines we have enjoyed the
benefits of the "merit system." The Schurmann Commission advocated in its reports that
"the greatest care should be taken in the selection of the officials for administration. They
should be men of the highest character and fitness, and partisan politics should be entirely
separated from the government." The fifth act passed by the Philippine Commission
created a Board of Civil Service. It instituted a system here that was far more radical and
thorough than that in the United States. The Governor-General after William Taft
adopted the policy of appointing Filipinos in the government regardless of their party
affiliation. As the result of these the personnel of the Civil Service had gradually come to
be one of which the people of the United States could feel justly proud.
Necessity for Constitutional provision. The inclusion in the constitution of provisions
regarding the "merit system" is a necessity of modern times. As its establishment secures
good government the citizens have a right to accept its guarantee as a permanent
institution.
Separation, suspension, demotions and transfers. The "merit system" will be
ineffective if no safeguards are placed around the separation and removal of public
employees. The Committee's report requires that removals shall be made only for "causes
and in the manner provided by law. This means that there should be bona fide reasons
and action maybe taken only after the employee shall have been given a fair hearing. This
affords the public employees reasonable security of tenure. (II Aruego's Framing of the
Constitution, 886, 887, 890.)
As has been seen, three specified classes of positions policy-determining, primarily
confidential and highly technical are excluded from the merit system and dismissal at pleasure
of officers and employees appointed therein is allowed by the Constitution. These positions
involved the highest degree of confidence, or are closely bound out with and dependent on other
positions to which they are subordinate, or are temporary in nature. It may truly be said that the
good of the service itself demands that appointments coming under this category determinable at
the will of the officer that makes them.
The office of city engineer is neither primarily confidential, policy-determining, nor highly
technical.
Every appointment implies confidence, but much more than ordinary confidence is reposed in
the occupant of a position that is primarily confidential. The latter phrase denotes not only
confidence in the aptitude of the appointee for the duties of the office but primarily close
intimacy which insures freedom of intercourse without embarrassment or freedom from
misgivings of betrayals of personal trust or confidential matters of state. Nor is the position of
city engineer policy-determining. A city engineer does not formulate a method of action for the
government or any its subdivisions. His job is to execute policy, not to make it. With specific
reference to the City Engineer of Baguio, his powers and duties are carefully laid down for him
be section 2557 of the Revised Administrative Code and are essentially ministerial in character.
Finally, the position of city engineer is technical but not highly so. A city engineer is not
required nor is he supposed to possess a technical skill or training in the supreme or superior
degree, which is the sense in which "highly technical" is, we believe, employed in the
Constitution. There are hundreds of technical men in the classified civil service whose technical
competence is not lower than that of a city engineer. As a matter of fact, the duties of a city
engineer are eminently administrative in character and could very well be discharged by non-
technical men possessing executive ability.
Section 10 of Article VIII of the Constitution requires that "All cases involving the
constitutionality of a treaty or law shall be heard and decided by the Supreme Court in banc,"
and warns that "no treaty or law may be declared unconstitutional without the concurrence of
two-thirds of all the members of the Court." The question arises as to whether this judgment
operates as invalidation of section 2545 of the Revised Administrative Code or a part of it so as
to need at least eight votes to make effective. The answer should be in negative.
We are not declaring any part of section 2545 of the Revised Administrative Code
unconstitutional. What we declare is that the particular provision thereof which gave the Chief
Executive power to remove officers at pleasure has been repealed by the Constitution and ceased
to be operative from the time that instrument went into effect. Unconstitutionally, as we
understand it, denotes life and vigor, and unconstitutional legislation presupposes posteriority in
point of time to the Constitution. It is a statute that "attempts to validate and legalize a course of
conduct the effect of which the Constitution specifically forbids (State ex-rel. Mack vs.
Guckenberger, 139 Ohio St., 273; 39 NE. [2d], 840.) A law that has been repealed is as good as
if it had never been enacted, and can not, in the nature of things, contravene or pretend to
contravene constitutional inhibition. So, unlike legislation that is passed in defiance of the
Constitution, assertive and menacing, the questioned part of section 2545 of the Revised
Administrative Code does not need a positive declaration of nullity by the court to put it out of
the way. To all intents and purposes, it is non-existent, outlawed and eliminated from the statute
book by the Constitution itself by express mandate before this petitioner was appointed.
Incidentally, the last discussion answers and disposes of the proposition that in accepting
appointment under section 2545 of the Revised Administrative Code, the petitioner must be
deemed to have accepted the conditions and limitations attached to the appointment. If the clause
of section 2545 which authorized the President to remove officers of the City of Baguio at
pleasure had been abrogated when petitioner's appointment was issued, the appointee can not
presumed to have abided by this condition.
We therefore hold that the petitioner is entitled to remain in office as City Engineer of Baguio
with all the emoluments, rights and privileges appurtenant thereto, until he resigns or is removed
for cause, and that respondent Mallare's appointment is ineffective in so far as it may adversely
affect those emoluments, rights and privileges. Without costs.
Separate Opinions
BENGZON, J ., concurring:
I concur in the result solely upon the ground that section 2545 of the Baguio Charter
(Administrative Code) empowering the President to remove the City Engineer at pleasure has
been impliedly repealed by section 22 of Commonwealth Act No. 177 which expressly provides
for the first time (following the mandate of the Constitution),that "no officer or employee in the
civil service shall be removed or suspended except for cause as provided by law."
I must decline to go into the matter of alleged conflict with the Constitution, first, because
plaintiff is precluded from raising that question (Zandueta vs. De la Costa, 66 Phil., 615); second,
because every law is presumed to be constitutional unless eight Justices of this Court are clearly
of a contrary opinion,
1
and third, because that subject need not be inquired into, except when
absolutely necessary for the disposition of the controversy.
REYES, J.:
I concur in this opinion of Mr. Justice Bengzon.


BORRES VS CA
G.R. No. L-36845 August 21, 1987
CITY MAYOR EULOGIO E. BORRES, CITY OF CEBU, CITY COUNCIL OF CEBU,
CEBU CITY TREASURER and CEBU CITY AUDITOR, petitioners, vs. COURT OF
APPEALS, GERMAN O. LUMAPAC and BARTOLOME ELIZONDO, respondents.
PADILLA, J .:
Petition for review on certiorari of the decision 1 of the Court of Appeals, dated 12 April 1973,
in CA-G.R. No. 48700-R which affirmed the decision of the Court of First Instance of Cebu in
Civil Case No. R-10848
Private respondents German 0. Lumapac and Bartolome Elizondo were appointed by the then
Mayor of Cebu City, Carlos J. Cuison as Senior Security and Security Guard, respectively, in the
Office of the Vice-Mayor, as recommended by then Vice-Mayor of Cebu City, Luis V. Diores.
In the 1967 local elections, Sergio Osmena, Jr. and petitioner Eulogio Borres ran and won as
Mayor and Vice-Mayor, respectively, of Cebu City. Osmena, Jr., however, did not assume office;
hence petitioner Borres became the Acting Mayor of Cebu City. Upon assuming office, or on 3
January 1968, petitioner Borres terminated the services of private respondents "due to lack of
confidence."
On 9 October 1968, private respondents German 0. Lumapac and Bartolome Elizondo, together
with Vicente Lao, filed with the Court of First Instance of Cebu, Branch III, a petition for
mandamus with damages against petitioners, docketed therein as Civil Case No. R-10848 and
praying among others that judgment be rendered (a) declaring their removal unlawful and void;
(b) ordering their reinstatement to their former positions, with right to receive back salaries from
the date of removal up to actual reinstatement; (c) directing payment of moral and exemplary
damages plus attorney's fees and litigation expenses in the sum of P2,500.00; and (d) adjudging
costs against City Mayor Eulogio E. Borres.
2

In due course, petitioners filed their answer, admitting some allegations and denying other
allegations of the petition, and setting forth special and affirmative defenses.
3

After several postponements, pre-trial was held on 22 December 1969, after which, the parties
submitted the following:
STIPULATION OF FACTS
COME NOW the parties in the above-entitled case, by their undersigned counsels
and to this Honorable Court, respectfully submit the following agreed statement
of facts:
1. Petitioner German O. Lumapac started service in the City of Cebu on
December 16, 1959, occupying various positions of Informer, Laborer and
Special Agent. Effective July 1, 1963, he was appointed Senior Security, Office of
the Mayor, as shown in his appointment (Annex A). Effective July 1, 1965, he
was extended an appointment (Annex B) as Senior Security, Office of the Vice-
Mayor, at P2,160.00 per annum which was later superseded by another
appointment (Annex C) with an increased salary of P3,060.00. The provisional
status of his appointment was changed to permanent at the same rate as shown in
his appointment, effective November 16, 1966 (Annex D), which was his last
appointment prior to the termination of his services.
2. Petitioner Vicente Lao started service in the City of Cebu on October 1, 1961,
as Confidential Agent, Division of Inspection, Office of the Mayor at P1,800.00
per annum. His last appointment, prior to the termination of his services, is to the
position of Confidential Agent, Inspection Division, Office of the Mayor,
effective January 1,1966 at P4,020.00 per annum (Annex E).
3. Petitioner Bartolome Elizondo started service in the City of Cebu on January 2,
1964, as Security Guard, Office of the Vice-Mayor, at P1,560.00 per annum
(Annex E). His next and last appointment for salary adjustment, prior to the
termination of his services, is as Security Guard, Office of the Vice-Mayor, at
P2,160.00 per annum (Annex G).
4. Petitioner German 0. Lumapac is a civil service (Testimonial) eligible (Security
Guard) since December 31, 1964, as shown in the attached copy of Notice of
Eligibility (Annex H).
5. The duties of Security Guard held by petitioner Bartolome Elizondo, a non-
eligible, as well as those of Senior Security held by petitioner German Lumapac,
are shown in their respective C.S. Form 9-A (revised 1963), xerox copies of
which are hereto attached and marked as Annexes "1" and "2".
6. On January 3, 1968, petitioners' services were terminated effective upon their
receipt on said date of letters of termination (Annex 1, 1-1, 1-2) from respondent
City Mayor. At the time of their termination, petitioners were members of the
GSIS and had the following efficiency ratings: German Lumapac, 89%; Vicente
Lao, 88%; and Bartolome Elizondo, 86%.
7. After the termination of their services, the positions of petitioners German
Lumapac, Vicente Lao and Bartolome Elizondo were filled up by Eduardo
Evangelista, Vicente Resales and Simplicio Alpuerto, respectively, all non-
eligibles, by appointments issued by the respondent City Mayor Borres.
8. After the termination of their services, petitioners sent petitions (Annexes J and
K) to the Commissioner of Civil Service, through the Regional Director, Civil
Service Commission, Regional Office No. 5, Cebu City, asking for the annulment
of their termination and their consequent reinstatement. The petition of Vicente
Lao and Bartolome Elizondo was referred by lst Indorsement, dated March 6,
1968 (Annex L) to the respondent Mayor Borres, by the Regional Director of the
Civil Service Commission, Cebu City, but until now no answer or action was
taken by said respondent. By a 5th Indorsement, dated February 2, 1968 (Annex
M), the Regional Director, Civil Service Commission, Regional Office No. 5,
Cebu City, forwarded to the Commissioner of Civil Service, Manila, petitioner
German Lumapac's above-mentioned petition for reinstatement. Despite the
aforementioned petitions, no definite action has been taken by the Commissioner
of Civil Service until the filing of this case and even until this date.
The parties reserve their right to introduce evidence on matter not covered by the
foregoing Stipulation of Facts.
4

After trial, the court a quo, Hon. Mateo Canonoy presiding, rendered a decision,
5
the dispositive
portion of which reads as follows:
IN VIEW OF THE FOREGOING, judgment is hereby rendered,
declaring the dismissals of German 0. Lumapac and Bartolome
Elizondo on January 3, 1968 illegal and hereby orders the
respondent City Mayor to reinstate them immediately; declaring
the said German O. Lumapac and Bartolome Elizondo entitled to
their backsalaries as Senior Security Guard and Security Guard
respectively from January 3, 1968 until their reinstatement; and
condemning the City of Cebu to pay their back-salaries at the rate
of P3,060.00 and P2,160.00 per annum respectively and one
thousand pesos as attorney's fees and the costs of this action.
The petition as to Vicente Lao is hereby dismissed.
IT IS SO ORDERED.
6

Vicente Lao, as well as petitioners herein, moved to reconsider the aforesaid decision of the trial
court. Their respective motions for reconsideration
7
were denied.
8

Dissatisfied, Vicente Lao and herein petitioners appealed to the Court of Appeals, docketed
therein as CA-G.R. No. 48700-R On 11 April 1973, said appellate court promulgated a decision
9

affirming that of the trial court. It ruled, among others, as follows:
... It is well settled that an employee or officer in the Civil Service who is holding
a primarily confidential position with a permanent status is within the protection
of Section 4, Article XII of the old Constitution which provides:
No officer or employee in the Civil Service shall be removed
except for cause as provided by law.
In the case of Gray vs. de Vera, 28 SCRA 268 (L-23966, May 22, 1969) the
Supreme Court ruled that:
a position declared primarily confidential comes within the
purview of Section 4, Article XII of the Constitution. The
permanent incumbent thereof can only be removed or suspended
for cause as provided by law.
There can be no dispute that the petitioners Lumapac, Elizondo and Lao are holding positions
which are primarily confidential in nature. But are their appointments permanent? With respect
to petitioners German D. Lumapac and Bartolome Elizondo the records show that their
appointments are permanent, that of Vicente Lao is temporary. In the same case of Gray vs. De
Vera, the Supreme Court ruled that the petitioner was entitled to a hearing and an opportunity to
defend himself so that his summary dismissal is illegal and was entitled to his reinstatement. The
Supreme Court in said case said:
... although the President, in Executive Order No. 399, declared the
position of secretary to the board of a government corporation
"primarily confidential in nature" it does not follow that a board
secretary whose appointment was permanent may be removed
from office without a formal charge specifying the ground for
removal and without giving him an opportunity of being heard. A
position declared primarily confidential comes within the purview
of Section 4, Article XII of the Constitution with respect to
removal of a permanent incumbent thereof.
xxx xxx xxx
.... In the present case, the petitioners German O. Lumapac and Bartolome
Elizondo were dismissed summarily without the benefit of a hearing. Even
assuming that when the officer holds a primarily confidential position, he can be
removed for lack of confidence, still we believe that before he is actually removed
he should at least be entitled to know the reason why he is being removed.
Otherwise he win not be able to determine whether he is being removed for cause
or not. A court note from the respondent to the effect that his services is
terminated without giving him a chance to know why and to be heard is offensive
to the foregoing Constitutional precent.
xxx xxx xxx
.... One reason given by the respondent Mayor in removing petitioners is that their
term of office are co-terminus with the term of the public officials they are
supposed to serve and therefore he can separate them from the service any time
upon the termination of office of the public officials to whom they are rendering
their services. We cannot subscribe to this argument. By virtue of their
appointment the petitioners are clearly assigned to the Office of the Vice-Mayor
and not to the particular officers. The office is permanent but the officers' stay in
office is not. So long as the Office of the Vice-Mayor exists whoever may be the
occupant of the office, the petitioners are under obligation to discharge their
duties until their services are lawfully terminated. In other words, the right of the
petitioners to stay in their position is co-terminus with the Office of the Vice-
Mayor and not with the term of any specified incumbent of the office. Respondent
Mayor has admitted that the appointments of petitioners German O. Lumapac and
Bartolome Eliondo are permanent, although he contends that they are permanent
only as noted in their respective appointment papers. If their appointments are
permanent as noted in their appointments then definitely they enjoy a permanent
status for what characterizes an appointment is the nature of the appointment
extended. (Villanosa vs. Alera, L-10586, May 29, 1967). The very nature of their
appointments are reflected in the appointment papers themselves.
Respondent Mayor claims that the lower court erred in not finding that petitioners
have failed to exhaust administrative remedies before filing the present action. He
contends that under Section 16, paragraph ( j ) of the Civil Service Act of 1959 is
within the power of the Commissioner to hear and determine Appeals by a person
aggrieved by an action or determination of any appointing authority contrary to
the provisions of the Civil Service Law and Rules and therefore petitioners should
have taken their case to the Commissioner of Civil Service and waited for his
decision on the matter. He insists that failure of petitioners to pursue such remedy
provided by the Civil Service Act is fatal to their claims. Paragraph 8 of the
Stipulation of Facts seems to belie the charge of respondent that petitioners failed
to exhaust their administrative remedies. Said paragraph provides:
after the termination of their services, petitioners sent petitions
(Annexes J and K) to the Commissioner of Civil Service, through
the Regional Director, Civil Service Commission Regional Office
No. 5, Cebu City, asking for the annulment of their termination and
their consequent reinstatement. The petition of Vicente Lao and
Bartolome Elizondo was referred as lst Indorsement, dated March
6, 1968 (Annex L) to respondent Mayor Borres by the Regional
Director of the Civil Service Commission Cebu City, but until now
no answer or action was taken by said respondent. By a 5th
Indorsement, dated February 2, 1968 (Annex M), the Regional
Director, Civil Service Commission, Regional Office No. 5, Cebu
City, forwarded to the Commissioner of Civil Service, Manila,
petitioner German Lumapac's above-mentioned petition for
reinstatement. Despite the aforementioned petitions, no definite
action has been taken by the Commissioner of Civil Service until
the filing of this case and even until this date.
From the foregoing it is clear that the petitioners have tried to resort to the
principle of exhaustion of administrative remedies but that the Commissioner of
Civil Service did not seem to have any definite action on the matter. In such an
event the only thing left to the petitioners is to go to Court for relief. One of the
recognized exceptions to the principle of exhaustion of administrative remedies is
when it is absolutely futile to resort to such remedies, as when the administrative
body does not want to act or delays action on the problem on hand. Besides, the
principle of exhaustion of administrative remedies does not apply and the
aggrieved party can immediately go to court for relief when the action of the
administrative body or officer is manifestly illegal or where the administrative
body or office concerned has acted without any lawful authority, as in the present
case. (Azur vs. Provincial Board, 27 SCRA 50; Mitra vs. Subido, 21 SCRA 127).
As a consequence of the above decision of the Court of Appeals, herein petitioners interposed the
present petition for review on certiorari, claiming that the Court of Appeals erred: (1) in finding
that the appointments of German O. Lumapac and Bartolome Elizondo are permanent; (2) in
declaring that they were illegally dismissed; (3) in not finding that private respondents have not
exhausted administrative remedies before filing the action for mandamus; and (4) in affirming in
toto the decision of the trial court.
The principal issue to be resolved is whether or not private respondents German 0. Lumapac and
Bartolome Elizondo may be dismissed, without cause or hearing, on the mere ground of lack of
confidence.
Petitioners maintain the affirmative. They claim that both the trial court and the Court of Appeals
erred in applying the rule laid down in Gray vs. De Vera. 10 In said case, Benjamin A. Gray was
appointed Secretary to the Board of Directors of the People's Homesite and Housing Corporation
(PHHC). On 12 January 1959, he sent a telegram to then President Carlos P. Garcia suggesting a
complete revamp of the Board of Directors of the PHHC due to the Board's acts of
mismanagement and misconduct. On the following day, the PHHC Board of Directors passed
Resolution No. 331 terminating his services on account of loss of confidence due to treachery or
disloyalty to the Board. Gray filed in the Court of First Instance of Rizal an action for quo
warranto. After trial, the court rendered a decision upholding the validity of Resolution No. 331
on the ground that the sending of the telegram to President Garcia was an act of treachery or
disloyalty to the Board of Director and constituted cause for his removal from office at any time,
considering that the position of Board Secretary was primarily confidential in nature. On appeal,
this Court in setting aside the decision of the court a quo held, among others, that.
... Although the President, in Executive Order No. 399, declared the position of
secretary to the board of a government corporation "primarily confidential in
nature," it does not follow that a board secretary whose appointment was
permanent may be removed from office without a formal charge specifying the
ground for removal and without giving him an opportunity of being heard. A
position declared primarily confidential comes within the purview of Section 4,
Article XII of the Constitution with respect to removal of the permanent
incumbent thereof. ...
xxx xxx xxx
The removal of Board Secretary Gray from the primarily confidential position to
which he had been permanently appointed was illegal in view of the following
considerations:
(1) There was no lawful cause for removal. The sending of the telegram of
January 12, 1959 to President Garcia suggesting a complete revamp of the Board
of Directors of the PHHC due to the Board's acts of mismanagement and
misconduct, the most serious of which was that the directors were grabbing as
"quotas dwelling awards inspite applicants of long standing," was an act of civic
duty. The telegram was a privileged communication presumably made in good
faith and capable of being substantiated by evidence.
According to the testimony of Director Manuel T. Leelin, the act of Board
Secretary Gray in sending the telegram of January 12, 1959 to the President of the
Philippines was an act of treachery or disloyalty to the Board.
xxx xxx xxx
We cannot agree, for the following reasons:
First. As pointed out, the sending of the telegram to the President of the
Philippines was an act of civic duty. The telegram was a privileged
communication presumably sent in good faith and capable of being proved by
evidence.
Second. The position of secretary to the board of a government corporation was
declared by the President in Executive Order No. 399 primarily confidential in
nature with the obvious intent that the position be filled by an appointee of
unquestioned honesty and integrity. Hence, the act of Board Secretary Gray in
reporting to the President of the Board's acts of mismanagement and misconduct
was in consonance with the honesty and integrity required for the position.
Assuming that Gray owed loyalty to the Board, that loyalty was in the interest of
good government and not in the personal interest of the directors to the extent of
concealing the shenanigans of the Board. ... .
If the charges of mismanagement and misconduct contained in the telegram were
false, the Board of Directors should have required Board Secretary Gray to show
cause why he should not be removed from office for making such false charges.
The Board Secretary would have been given an opportunity of being heard. If
unable to substantiate his charges, the Board could have made a finding to that
effect and remove Board Secretary Gray from office for serious misconduct (not
for treachery or disloyalty to the Board).
(2) Assuming, arguendo, that appellant's telegram to President Garcia constituted
lawful cause for his removal from office, the fact remains that he was summarily
removed one day after he had sent the telegram, and that no formal charge was
filed against him stating the ground for removal and giving him an opportunity of
being heard. He was, thus, removed from office without due process of law, in
view of which his removal was illegal.
Petitioners contend however that there is no parallelism between the Gray case and the case at
bar. They claim that the removal of Gray as PHHC board secretary was declared illegal because
of some attendant vital considerations in said case, not present in the case at bar. In other words,
petitioners contend that the present case is not "on all fours" with the Gray case. Thus, they argue
that the loyalty of Gray was to the Board, in the interest of good government, and not, in the
personal interest of the members of the Board of Directors, and that the relationship between
Gray and the PHHC Board of Directors and the relationship between private respondents and the
Vice-Mayor of Cebu City are totally different, for the latter denotes a very close personal relation
by reason of the nature of the duties and functions of a Security Officer and Security Guard,
while the former does not.
There are two (2) instances when a position may be considered primarily confidential: (1) when
the President, upon recommendation of the Commissioner of Civil Service, has declared the
position to be primarily confidential; or (2) in the absence of such declaration, when by the
nature of the functions of the office, there exists close intimacy between the appointee and the
appointing power, which insures freedom of intercourse without embarrassment or freedom from
misgiving of betrayals of personal trust or confidential matters of state. 11 However, upon the
enactment of the 1959 Civil Service Act (RA 2260), it is the nature of the position which finally
determines whether a position is primarily confidential. Executive pronouncements can be no
more than initial determinations that are not conclusive in case of conflict. 12 Thus, Section 5 of
the 1959 Civil Service Act (RA 2260) provides, as follows:
SEC. 5. The Non-competitive Service. The non-competitive or unclassified
service shall be composed of positions expressly declared by law to be in the non-
competitive or unclassified service or those which are policy determining,
primarily confidential or highly technical in nature. (Emphasis ours)
In the Gray case, Executive Order No. 399 which declared the position of secretary to the Board
of Director of a government corporation "primarily confidential in nature" was issued on 5
January 1951, i.e., before the enactment of the 1959 Civil Service Act (RA 2260). As held by
this Court in said Gray case, "(t)he position of secretary to the board of a government corporation
was declared by the President in Executive Order No. 399 primarily confidential with the
obvious intent that the position be filled by an appointee of unquestioned honesty and integrity"
and that the "act of Board Secretary Gray in reporting to the President the Board's acts of
mismanagement and misconduct was in consonance with the honesty and integrity required of
the position." In other words, "honesty" and "integrity," were the primary considerations for
appointment to the position of board secretary of a government corporation. The position did not,
however, involve "such close intimacy" between the board secretary and the Board of Directors
of the PHHC, as would insure "freedom from misgivings of betrayals of personal trust."
In the present case, the positions of Senior Security and Security Guard in the Office of the Vice-
Mayor of Cebu City, are primarily confidential in nature because of the duties and functions
attached to said positions. In his request for certification for eligibility as Senior Security, private
respondent German O. Lumapac enumerated his duties, as follows: (1) to give adequate
protection for the Vice-Mayor's safety; (2) to accompany the Vice-Mayor in all his appointments;
and (3) to perform other duties assigned to him by the Vice-Mayor from time to time.13 On the
other hand, as Security Guard, private respondent Bartolome Elizondo performs the following
duties: (1) to act as bodyguard of the person of the Vice-Mayor; (2) to prepare security measures
for the safety of the Vice-Mayor; and (3) to perform other duties which the Vice-Mayor may
assign to him from time to time.14 By virtue of the nature of the duties and functions attached to
said positions, the relationship between the Vice-Mayor and his Security is one that depends on
the highest degree of trust and confidence, such that trust and confidence are the primary reasons
for appointment thereto. As a matter of fact, private respondents were appointed to said positions
upon the recommendation of the then Vice-Mayor Luis V. Diores. Petitioner Borres should not
be deprived of the right to choose his own men to act as his Security.
In the light of the foregoing, the Court holds that the rule laid down in Gray vs. De Vera is not
applicable to the factual environment of the present case.
The tenure of personnel holding primarily confidential positions, such as the respondents, ends
upon loss of confidence, because their term of office lasts only as long as confidence in them
endures, thus, their cessation involves no removal. 15 In Salazar vs. Mathay 16 where the
petitioner therein was appointed to the position of Confidential Agent in the Office of the
Auditor, GSIS, which position was likewise declared as primarily confidential under Executive
Order No. 265, this Court in upholding her termination held:
.... Her position being primarily confidential, petitioner cannot complain that the
termination of her services as confidential agent in the Office of the Auditor,
GSIS is in violation of her security of tenure. In the case of Delos Santos vs.
Mallare, supra, primarily confidential positions are excluded from the merit
system, and dismissal at pleasure of officers or employees therein is allowed by
the Constitution, although in Ingles vs. Mutuc 17 this assumption was held to be
inaccurate. According to the Court, the proper expression to be used is that the
term of the incumbent merely expires. Thus in said case, the Court held:
This should not be misunderstood as denying that the incumbent of
a primarily confidential position holds office at the pleasure only
of the appointing power. It should be noted, however, that when
such pleasure turns into displeasure, the incumbent is not
"removed" or "dismissed" from office-his "term" merely "expires"
in much the same way as an officer, whose right thereto ceases
upon the expiration of the fixed term for which he had been
appointed or elected, is not and cannot be deemed "removed" or
"dismissed" therefrom, upon the expiration of said term. The main
difference between the former the primarily confidential officer
and the latter is that the latter's term is fixed or definite, whereas
the former is not prefixed, but indefinite, at the time of his
appointment or election, and becomes fixed and determined when
the appointing power expresses its decision to put an end to the
services of the incumbent. When this event takes place, the latter is
not "removed" or "dismissed" from office-his term has merely
"expired.
Accordingly, it can be said that petitioner was not removed from her office as
confidential agent in the office of the Auditor, GSIS, but that her term to said
position has already expired when the appointing power terminated her services.
Similarly, in the case at bar, it may also be said, with equal vigor, that when petitioner Eulogio
Borres, terminated the services of private respondents "due to lack of confidence," they were not
"removed" or "dismissed" from the service; their "term" in their respective positions merely
"expired." Hence, they were not illegally "removed" or "dismissed" from the service.
Having arrived at the above conclusion, we do not find it necessary to discuss the other issues
raised in the petition.
WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals, dated 12 April
1973, is hereby REVERSED and SET ASIDE. Without costs.
SO ORDERED.

HIGHLY TECHNICAL
BESA VS PNB
G.R. No. L-26838 May 29, 1970
TOMAS BESA, petitioner, vs. PHILIPPINE NATIONAL BANK; HON. ROBERTO S.
BENEDICTO, President of the Philippine National Bank; THE BOARD OF DIRECTORS,
Philippine National Bank; HON. ANTONIO M. DIAZ, BIENVENIDO M. JUAT, SIMEON
G. MIRANDA, JUAN PONCE ENRILE, ISMAEL M. REINOSO, and JUAN TRIVINO,
Members of the Board of Directors of the Philippine National Bank; and HON.
CONRADO E. MEDINA, Actg. Asst. Vice-President, In-charge of the Loans Adjustment
Dept., respondents.
FERNANDO, J .:
The constitutional safeguard against removal from office except for cause is invoked by
petitioner Tomas Besa in this proceeding for certiorari, prohibition and quo warranto.
1

Appointed Chief Legal Counsel with the rank of Vice-President of respondent Philippine
National Bank in 1962, he was shifted by virtue of a resolution of respondent Bank on October
19, 1966, to the office of its President, respondent Roberto S. Benedicto, as Consultant on Legal
Matters,
2
with respondent Conrado E. Medina being assigned to his position. While petitioner
would seek to nullify the above resolution and enjoin its enforcement, his action is essentially
one of quo warranto. Its success is thus dependent on his being able to sustain the burden of
demonstrating that what was done by respondent Bank, through its Board of Directors, all of
whom were likewise named respondents, could in law be characterized as removal without cause
contrary to the explicit mandate of the Constitution. That he was not able to do. The petition
must fail.
There is no dispute as to the facts. Petitioner was appointed on July 12, 1962 as Chief Legal
Counsel of respondent Bank with the rank of Vice-President. On October 20, 1966, a letter-
directive was issued by the then President of the Bank, respondent Benedicto, that he was
transferred to his office as Consultant on Legal Matters. The justification for such a move was
Resolution No. 1053 of respondent Board of Directors of the Bank, wherein it was expressly
stated "that Vice President Tomas Besa be shifted to the Office of the President as Consultant on
Legal Matters, without change in salary and other privileges."
Thereafter, on October 24, 1966, petitioner, in a letter addressed to the respondent Board of
Directors and respondent President Benedicto, sought a reconsideration of the action above taken.
Under date of October 27, 1966, the Secretary of respondent Board of Directors advised
petitioner of the denial of his motion for reconsideration. In the aforesaid letter-directive of
October 20, 1966, respondent Conrado E. Medina was designated Vice-President and Chief
Legal Counsel effective as of that day.
In its answer, respondents admitted the above facts and stressed that respondent Medina far from
usurping the position of petitioner "is Vice President and Chief Legal Counsel of the respondent
Bank who has assumed office and discharged the duties thereof starting October 20, 1966 by
virtue of a valid appointment extended to him by the respondent Board of Directors and a letter-
directive issued pursuant thereto by respondent PNB President Roberto S. Benedicto."
3
The
action taken in the case of petitioner was explained thus: "The transfer of petitioner from the
Legal Department is further justified by the following facts and circumstances: a) The position of
Chief Legal Counsel carries a special confidential relationship of lawyer and client. In this regard,
the Bank has the prerogative to designate or change its lawyer, that is, to choose the lawyer, in
whom it may have confidence, to head its Legal Department; b) As a matter of fact, it was on
this same principle of confidence that in 1962 the petitioner, who was then an outsider (private
practitioner), was appointed as Vice President and Chief Legal Counsel by the transfer of Atty.
Ramon B. de los Reyes, who was then head (for twenty-one years) of the Legal Department, to a
new position of Technical Assistant to the Executive Vice President, with only the rank of
Assistant Vice President; c) The transfer of petitioner from the Legal Department was made by
the respondent Board, in the exercise of its powers, upon the recommendation of their respondent
PNB President. The respondent Board had authorized the PNB President to revitalize the Legal
Department, ...."
4

As was made clear at the outset, the law is not on the side of petitioner. His plea cannot be
granted.
1. Petitioner's reliance on the constitutional provision against removal without cause is misplaced.
It is appropriate to invoke it when an officer or employee in the civil service enjoying a fixed
term is made to lose his position without warrant or justification. It certainly finds no application
when the duration of one's term depends on the will of the appointing power. That is so where
the position held is highly confidential in character. Such is the case of the Chief Legal Counsel
of respondent Philippine National Bank. That is our answer to the specific question before us.
Our decision is limited to the validity of the action taken by respondent Bank. We do not by any
means intimate an opinion as to the legal consequences attaching to an action similar in character
taken by any other office or agency of the government concerning a lawyer in its staff, especially
one who was not employed precisely because of the marked degree of confidence reposed in him,
but rather because of his technical competence.
As far as the petitioner is concerned, however, it is our conclusion that he could not plausibly
contend that there was a removal in the constitutional sense as what did take place was a
termination of official relation. Accepting as he did the position of chief legal adviser, the
essence of which is the utmost degree of confidence involving such "close intimacy which
insures freedom of intercourse without embarrassment or freedom from misgivings of betrayals"
whether of personal trust or official matters,
5
he could not have been unaware that his term could
be cut short any time without giving rise to any alleged infringement of the above constitutional
safeguard. There was no removal which according to such a mandate is only allowable for cause.
Hence the lack of persuasive character of petitioner's plea.
The matter was set forth with precision and clarity by the present Chief Justice in a recent
decision.
6
Thus: "This should not be misunderstood as denying that the incumbent of a primarily
confidential position holds office at the pleasure only of the appointing power. It should be noted,
however, that when such pleasure turns into displeasure, the incumbent is not 'removed' or
'dismissed' from office his 'term' merely 'expires,' in much the same way as an officer, whose
right thereto ceases upon expiration of the fixed term for which he had been appointed or elected,
is not and can not be deemed 'removed' or 'dismissed' therefrom, upon the expiration of said term.
The main difference between the former the primarily confidential officer and the latter is
that the latter's term is fixed or definite, whereas that of the former is not prefixed, but indefinite,
at the time of his appointment or election, and becomes fixed and determined when the
appointing power expresses its decision to put an end to the services of the incumbent. When this
event takes place, the latter is not 'removed' or 'dismissed' from office his term has merely
'expired'."
2. Petitioner in his memorandum apparently was encouraged by the long, unbroken,
unquestioned course of impressive adjudication of this Court that has given a well-nigh all-
embracing scope to the mantle of protection covering civil service personnel against removal
without cause. So it has been from Lacson v. Romero
7
to the above-cited Ingles v. Mutuc
decision.
8
So, it is to be expected, it would continue to be. Petitioner's cause did not thereby gain
ground however. For as had just been made clear, there was in his case no question of removal.
The excerpts cited by him from a few of the authoritative precedents thus do not commend
themselves for their pertinence or relevance.
9

There is a question raised by petitioner in his memorandum though, unfortunately not given the
fullness of attention devoted to the removal aspect, which deserves to be further looked into.
While the mode of inviting our attention to it could have benefited from a more precise
delineation of its implications, reference to our Corpus v. Cuaderno
10
ruling would indicate that
what petitioner had in mind was the permanency of the terms of an official whose line of work is
likewise of a technical character. As was made clear by Justice J. B. L. Reyes, who penned the
opinion: "The tenure of officials holding primarily confidential positions (such as private
secretaries of public functionaries) ends upon loss of confidence, because their term of office
lasts only as long as confidence in them endures; and thus their cessation involves no removal.
But the situation is different for those holding highly technical posts, requiring special skills and
qualifications. The Constitution clearly distinguished the primarily confidential from the highly
technical, and to apply the loss of confidence rule to the latter incumbents is to ignore and erase
the differentiation expressly made by our fundamental charter."
Petitioner did satisfy himself with citing the title of the above decision and that of two
subsequent cases
11
that adhere to the above principle. It could be that he was more than
persuaded that such a succinct and abbreviated form of argumentation would suffice to carry the
day. It does not, however, as a more careful analysis of the above doctrine would indicate.
It cannot be denied of course that the work of the Chief Legal Counsel of respondent Bank, as of
any lawyer for that matter, is impressed with a highly technical aspect. As had been pointed out,
however, it does not mean that thereby a client is precluded from substituting in his stead another
practitioner. That is his right; his decision to terminate the relationship once made is impressed
with the attribute of finality. The lawyer cannot be heard to complain; it is enough that his right
to compensation earned be duly respected.
In that sense, it is equally clear that where the position partakes of the attributes of being both
technical and confidential, there can be no insistence of a fixed or a definite term if the latter
aspect predominates. To paraphrase the language of the Chief Justice in the opinion previously
cited, the incumbent of a primarily confidential position, as was the case of petitioner, should
realize that at any time the appointing power may decide that his services are no longer needed.
As thus correctly viewed, Corpus v. Cuaderno cannot be read as lending support to petitioner's
efforts to retain his position as Chief Legal Counsel of respondent Bank, contrary to its wishes as
so explicitly declared in its Resolution No. 1053.
3. It is manifest from the foregoing that we have considered the crucial issue posed from the
standpoint of the right enjoyed by respondent Bank to choose who its legal counsel should be
and how long he would remain as such. We have not seen any need to pass upon the conflicting
claims raised as to the alleged failure of petitioner in the discharge of his functions to extend the
utmost protection to the interests of respondent Bank nor of the vigorous defense of his
actuations as such, which if given full credence, would erase the slightest doubt as to his
competence and proficiency. For as above noted, the decisive issue is the confidential character
of petitioner's position, which negates reliance on the removal-for-cause guarantee of the
Constitution. We thus leave open for future determination, when and if such a litigation arises,
case involving the other vice-presidents of the respondent Bank, where it would appear the
overriding factor in their selection is not that degree of the utmost confidence reposed in a lawyer
but their technical skills in the performance of the duties entrusted to them.
WHEREFORE, this petition for certiorari, prohibition and quo warranto is dismissed. Without
pronouncement as to costs.

CADIENTE VS SANTOS
G.R. No. L-35592 June 11, 1986
MEDARDO AG. CADIENTE, petitioner, vs. LUIS T. SANTOS, City Mayor of Davao City,
MAXIMINO ASISTIDO, City Treasurer of Davao City, FELIX N. PEPITO, City Auditor
of Davao City, and ATTY. VICTOR CLAPANO, respondents.
ALAMPAY, J .:
Petition for review on certiorari of the decision of the Court of First Instance of Davao City,
Branch I, in Civil Case No. 7571, entitle Ag. Cadierte vs. Mayor Luis T. Santos, et al."
promulgated on August 23, 1972, which dismissed the petition for mandamus, quo warranto,
with preliminary injunction filed by herein petitioner.
On September 13, 1971, petitioner Cadiente was appointed by then Mayor Elias B. Lopez as City
Legal Officer of Davao City. The appointment was duly attested to and/or approved as
"permanent" by the Civil Service Commission under Section 24(b) of R.A. 2260. On January 6,
1972, the new and then incumbent City Mayor Luis T. Santos, herein respondent, sent a letter
(Annex "H" to the Petition, p. 43, Rollo) to the petitioner advising the latter that his services as
City Legal Officer of Davao City "are dispensed with effective upon receipt of said letter" on the
ground that the position of City Legal Officer was primarily confidential in nature. This was the
opinion rendered by the City Fiscal of Davao City on January 6, 1972, after being requested to
submit his legal opinion on said matter. Respondent City Mayor appointed respondent Atty.
Victor Clapano as City Legal Officer on January 6, 1972 to take effect on said date.
Petitioner appealed to the Civil Service Commission on January 7, 1982, which rendered its
decision in its lst Indorsement dated March 2, 1972, therein holding that the termination, removal
and/or dismissal of petitioner is "without cause and without due process" and that the position of
City Legal Officer "is not included among those positions enumerated in Sec. 5 of R.A. 2260 as
belonging to the non-competitive service." Subsequently, on April 7, 1972, the City Council of
Davao City passed Resolution No. 210, series of 1972, therein considering and recognizing
herein petitioner Atty. Medardo Ag. Cadiente, as the rightful City Legal Officer of Davao City
(Rollo, pp. 54-58). Despite this resolution, the public respondents in this case who are the City
Mayor, the City Treasurer, and the City Auditor of Davao City, still declined and refused to
recognize petitioner as the one entitled to the disputed position of City Legal Officer of Davao
City.
Meanwhile, in an Indorsement (Annex "O" to the Petition, p. 59) dated February 8, 1972, the
Civil Service Commission returned the appointment of respondent Clapano to respondent City
Mayor with the information that said office (Civil Service Commission) "overlooked the fact that
the appointee was more than 57 years old at the time of his appointment and, therefore, authority
for his appointment be first secured from the Office of the President pursuant to Section 6 of R.A.
728, as reinforced by Section 5, Civil Service Rule IV, which states that "no person shall be
appointed or reinstated in the service if he is already 57 years of age, unless the President of the
Philippines ... determines that he possesses special qualifications and his services are needed.
Petitioner thus filed with the Court of First Instance of Davao City, Branch I, Civil Case No.
7571, for mandamus, quo warranto with preliminary injunction against the herein respondents,
praying therein that: (a) respondent City Mayor be ordered to reinstate and/or allow him to
continue performing his duties and functions as City Legal Officer of Davao City; (b) the
appointment of respondent Clapano be declared illegal and invalid; and (c) respondents City
Mayor, City Treasurer, and City Auditor be ordered to pay him all his salaries, wages,
allowances, emoluments an other benefits due him as City Legal Officer from the time of his
illegal dismissal until the termination of the suit. On August 23, 1972, the trial court rendered its
decision dismissing the aforestated case, as it ruled that:
The positions of Municipal Attorney, Provincial Attorney and City Legal Officer
are by their very nature, primarily confidential, and therefore, belong to the non-
competetive service under paragraph 1, section 5, Republic Act 2260, as amended,
because the functions attached to the offices require the highest trust and
confidence of the appointing authority on the appointee....
The approval of, and attestation to the appointment of petitioner Cadiente as
permanent under Section 24(b) of R.A. 2260, as amended, by the Commissioner
of Civil Service did not make the appointment permanent and the position fall
under the competetive service. If, as the Court has found, the position is primarily
confidential, petitioner Cadiente held office at the pleasure of respondent Mayor
and the position belongs to the non-competitive service.
Motion for reconsideration of said decision having been denied in an Order dated September 23,
1972, the present petition to compel reinstatement and payment of back salaries, was filed with
this Court on October 7, 1972. In the Resolution of this Court dated December 28, 1972, said
petition was given due course.
In resolving the merits of the instant case, We find as an undeniable fact that the position of a
City Legal Officer is one which is "primarily confidential". This Court held in the case of
Claudio vs. Subido, L-30865, August 31, 1971, 40 SCRA 481, that the position of a City Legal
Officer is one requiring that utmost confidence on the part of the mayor be extended to said
officer. The relationship existing between a lawyer and his client, whether a private individual or
a public officer, is one that depends on the highest degree of trust that the latter entertains for the
counsel selected. As stated in the case of Pinero vs. Hechanova, L-22562, October 22, 1966, 18
SCRA 4176 (citing De los Santos vs. Mallaare 87 Phil. 289), the phrase primarily confidential'
"denotes not only confidence in the 'aptitude of the appointee for the duties of the office but
primarily close intimacy which insures freedom of intercourse, without embarrassment on
freedom from misgivings of betrayals of personal trust on confidential matters of state.
(Emphasis supplied).
The tenure of officials holding primarily confidential positions ends upon loss of confidence,
because their term of office lasts only as long as confidence in them endures; and thus their
cessation involves no removal (Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591-
596). When such confidence is lost and the officer holding such position is separated from the
service, such cessation entails no removal but an expiration of his term. In the case of Hernandez
vs. Villegas, L-17287, June 30, 1965, 14 SCRA 548, it was held
It is to be understood of course that officials and employees holding primarily
confidential positions continue only for so long as confidence in them endures.
The termination of their official relation can be justified on the ground of loss of
confidence because in that case their cessation from office involves no removal
but merely the expiration of the term of office-two different causes for the
termination of official relations recognized in the Law of Public Officers.
In the case at bar, when the respondent City Mayor of Davao terminated the services of the
petitioner, he was not removed or dismissed. There being no removal or dismissal it could not,
therefore, be said that there was a violation of the constitutional provision that "no officer or
employee in the civil service shall be suspended or dismissed except for cause as provided by
law" (Article XII-B, Section 1(3), 1973 Constitution).
The matter of expiration of a term of an officer holding a primarily confidential position, as
distinguished from a removal or dismissal, was further explained by this Court, in the case of
Ingles vs. Mutuc, L-20390, November 29, 1960, 26 SCRA 171, in this wise:
When an incumbent of a primarily confidential position holds office at the
pleasure of the appointing power, and the pleasure turns into a displeasure, the
incumbent is not removed or dismissed from office-his term merely expires, in
much the same way as an officer, whose right thereto ceases upon expiration of
the fixed term for which he had been appointed or elected, is not and cannot be
deemed removed or dismissed therefrom, upon expiration of said term.
The main difference between the former the primarily confidential officer-and the
latter is that the latter's term is fixed or definite, whereas that of the former is not
pre-fixed, but indefinite, at the time of his appointment or election, and becomes
fixed and determined when the appointing power expresses its decision to put an
end to the services of the incumbent. When this event takes place, the latter is not
removed or dismissed from office-his term merely expired,
The foregoing merely elaborates what this Court, speaking thru Justice J.B.L. Reyes, stressed in
the case Corpus vs. Cuaderno, L-23721, March 31, 1965, 13 SCRA 591. In said case We stated
that:
The tenure of officials holding primarily confidential positions ends upon loss of
confidence, because their term of office lasts only as long as confidence in them
endures, and thus their cessation involves no removal.
WHEREFORE, the petition is hereby DENIED for lack of merit.
SO ORDERED.



Promotion
PANIS VS CIVIL SERVICE COMMISSION
AUTOMATIC REVERSION RULE (DIVINAGRACIA VS SANTO TOMAS)

G.R. No. 110954 May 31, 1995
DELFIN N. DIVINAGRACIA, JR., AND ALEXIS D. SAN LUIS, petitioners,
vs.
HON. PATRICIA A. STO. TOMAS, RAMON P. ERENETA, JR., and PRESCILLA B.
NACARIO, respondents.

BELLOSILLO, J.:

The primordial purpose of our civil service laws is to establish and maintain a merit system in
the selection of public officers and employees without regard to sex, color, social status or
political affiliation. But there are times when appointments to public office are dominated by
partisan favoritism and patronage, where tenurial rights are subject to the whims of officialdom.

On 1 August 1980 Filomena R. Mancita was appointed Municipal Development Coordinator
(MDC) of Pili, Camarines Sur, in a permanent capacity. On 14 March 1983 when the Local
Government Code took effect, the office was renamed Municipal Planning and Development
Coordinator (MPDC). 1 On 28 March 1983 the Sangguniang Bayan of Pili approved Resolution
No. 38 creating and organizing the Office of MPDC. 2 Mancita held over the position until 1985.

On 1 January 1985 the Joint Commission on Local Government Personnel Administration
approved the reorganization plan and staffing pattern of the Municipality of Pili. 3 In a letter
dated 17 June 1985 Mayor Anastacio M. Prila notified Mancita that her services were being
terminated effective at the close of office hours on 1 July 1985 on the ground that the Office of
MDC was abolished as a result of the reorganization of the local government of Pili. Private
respondent Prescilla B. Nacario who was then the Municipal Budget Officer was appointed
MPDC on 10 June 1985 to take effect on 1 July 1985. 4 Nacario was replaced by Digna Isidro as
Municipal Budget Officer. Isidro was succeeded a year later by Eleanor Villarico who served
until 1990.

In 1988 the Local Government Officers Services, which included the local Budget Office, was
nationalized and placed under the Department of Budget and Management. As a result, the
authority to appoint the Budget Officers of the different local government units devolved upon
the Secretary of the Budget. When Villarico resigned on 1 March 1990 the Budget Office
became vacant until 30 September 1991, or for more than a year, owing to the lack of a qualified
candidate that the Secretary of the Budget could appoint. In the meantime, Juan Batan, the
former Municipal Budget Officer of Baao, Camarines Sur, was appointed Officer-in-Charge of
the Municipal Budget Office of Pili. He was later replaced by Francisco Deocareza, the former
Budget Officer of Naga City, in the same capacity. 5

On 1 October 1991, petitioner Alexis D. San Luis, Cashier II of the Department of Environment
and Natural Resources (DENR), was temporarily appointed Municipal Budget Officer of Pili by
Secretary Guillermo N. Carague of the Department of Budget and Management. When control
over the Local Government Officers Services was returned to the local government units by
virtue of the Local Government Code of 1991 (R.A. 7160 as implemented by E.O. 503), San
Luis was reappointed to the same position on 22 June 1992, this time in a permanent capacity, by
petitioner Delfin N. Divinagracia, Mayor of Pili. 6

San Luis started in the career civil service in 1977 as a casual clerk in the DENR, rising from the
ranks until he was appointed Cashier II based in Legaspi City, the position he was holding when
appointed Municipal Budget Officer of Pili. 7

Meanwhile, Mancita appealed her termination to the Merit Systems and Protection Board
(MSPB). 8 On 20 June 1989 the MSPB declared her separation from the service illegal, holding
that the Office of the Municipal Development Coordinator was abolished by the Local
Government Code of 1991 and not by the reorganization of the Municipality of Pili as claimed
by Mayor Prila. According to the MSPB, Mancita was in fact qualified for the newly-created
position of MPDC since the powers and duties of the two positions were essentially the same.
The MSPB ordered Mayor Divinagracia to reinstate Mancita to the position of MPDC or to an
equivalent position, and to pay her backwages from the date of her separation. 9 The decision of
MSPB was appealed by Mayor Divinagracia to the Civil Service Commission but the appeal was
dismissed on 16 July 1990 per CSC Resolution No. 90-657. 10 On 15 October 1990, Mayor
Divinagracia informed private respondent Nacario that she was being relieved of her position as
MPDC effective 16 November 1990 in order to comply with the MSPB decision to reinstate
Mancita as MPDC.

On 8 November 1990 private respondent Prescilla B. Nacario filed a Petition for Declaratory
Relief and Prohibition with Preliminary Injunction with the Regional Trial Court of Pili, Br. 31,
docketed as Civil Case No. P-17819, against CSC Chairperson Patricia A. Sto. Tomas, Mayor
Delfin N. Divinagracia, Jr., Elium Banda, Regional Director of CSC in Region 5, and Filomena
R. Mancita, praying for the annulment of CSC Resolution No. 90-657. Presiding Judge Ceferino
P. Barcinas of Br. 31 issued a temporary restraining order enjoining the implementation of the
questioned CSC resolution and set the date for the hearing of the application for preliminary
injunction. Mancita filed a motion to dismiss on the ground that the trial court had no jurisdiction
over the subject matter. Her motion was denied. Mancita then filed a special civil action for
certiorari under Rule 65 before this Court questioning the denial of her motion. Through Mr.
Justice Teodoro R. Padilla we granted the petition and held that the lower court had no
jurisdiction over the case since all decisions, orders and resolutions of the Civil Service
Commission were subject to review only by this Court on certiorari under Rule 65 of the Rules
of Court. 11

While the petition of Mancita was pending with us, Nacario sent a query to public respondent
Commission asking about her status as a permanent employee of the Municipality of Pili after
she had accepted the position of MPDC. In a letter dated 8 December 1992 public respondent
opined that the reinstatement of Mancita to the position of MPDC was not a valid cause for
Nacario's termination, and since she was the former Municipal Budget Officer she had the right
to return to that position. 12

On 15 March 1993 Mayor Divinagracia wrote to CSC Chairperson Patricia A. Sto. Tomas
seeking a reconsideration of her opinion of 8 December 1992. Mayor Divinagracia explained the
factual circumstances behind the ouster of Mancita and the resulting appointment of Nacario to
the position of MPDC, arguing that San Luis was validly appointed by the Secretary of the
Budget and confirmed by the CSC, hence, entitled to security of tenure. 13

On 27 May 1993 public respondent issued CSC Resolution No. 93-1996 denying the request of
Mayor Divinagracia for a reconsideration. Upholding Nacario's right to security of tenure the
CSC held that the reinstatement of Mancita to the position of MPDC could not be a valid cause
for the termination of Nacario. Public respondent relied on Sec. 13, Rule VI, of the Omnibus
Rules Implementing Book V of E.O. No. 292, otherwise known as the Revised Administrative
Code of 1978 in directing the restoration of Nacario to her former position. Sec. 13 mandates the
return of an appointee, in a chain of promotions, to his former position once his appointment is
subsequently disapproved.

Petitioners have come to us for relief praying that CSC Resolution No. 93-1996 be nullified for
having been issued with grave abuse of discretion. On 5 October 1993, upon motion of
petitioners, this Court issued a status quo ante order enjoining the enforcement of the questioned
CSC order. 14 Petitioners contend that Sec. 13, Rule VI, of the Omnibus Rules Implementing the
Revised Administrative Code (E.O. 292) does not apply to the present case because the rule
covers only appointments in a chain of promotions and not where a public officer was merely
transferred to another position of the same rank, grade and level.

Petitioners further contend that Nacario was deemed to have vacated her position as Budget
Officer when she accepted her appointment as MPDC considering that there were several
appointments made to the Budget Office in the past eight (8) years since her transfer. 15
According to petitioners, San Luis was also denied his right to be heard when public respondent
ordered him to vacate his position without affording him an opportunity to contest the claim of
Nacario thus violating his constitutional right to due process. 16

Upon the other hand, private respondent claims that she did not voluntarily apply for transfer
from the Budget Office to the Office of MPDC but was constrained to "accept" the new position
because of Mayor Prila. She was, in her own words, "a passive participant in the movement of
personnel" in the municipal government of Pili having acted as a "subservient public official" in
assuming the position of MPDC.

Nacario maintains that her "acceptance" of the position of MPDC which she admits is of the
same rank, salary grade and level was motivated by her respect for Mayor Prila who was then her
superior. In fact, according to her, she applied for the position of Budget Officer with the
Department of Budget and Management while she was MPDC indicating that she did not
abandon or relinquish her former position as alleged by petitioners. 17

For their part, public respondents Sto. Tomas and Ereneta, Jr., insist on the application to the
present case of the automatic reversion rule provided under Sec. 13, Rule VI, of the Omnibus
Rules Implementing Book V of E.O. 292. They submit that the term "chain of promotions" must
not be interpreted in a literal, rigid and narrow sense but must be construed liberally in favor of
private respondent who merely accepted the position of MPDC to accommodate her superior
unaware that her new appointment thereto would be infirmed. 18

We deny the petition. Petitioner Alexis D. San Luis cannot hold on to the position of Municipal
Budget Officer. On the other hand, respondent Prescilla B. Nacario who is protected by law in
her security of tenure should be reinstated thereto.

Sec. 13 of the Omnibus Rules Implementing Book V of E.O. 292 provides that

Sec. 13. All appointments involved in a chain of promotions must be submitted simultaneously
for approval by the Commission. The disapproval of the appointment of a person proposed to a
higher position invalidates the promotion of those in lower positions and automatically restores
them to their former positions. However, the affected persons are entitled to the payment of
salaries for services actually rendered at a rate fixed in their promotional appointments.

Under the aforecited section, before a public official or employee can be automatically restored
to her former position, there must first be a series of promotions; second, all appointments are
simultaneously submitted to the CSC for approval; and third, the CSC disapproves the
appointment of a person proposed to a higher position.

The essential requisites prescribed under Sec. 13 do not avail in the case at bench. To start with,
the movement of Nacario from the Budget Office to the Office of MPDC cannot be considered a
promotion for the term connotes an increase in duties and responsibilities as well as a
corresponding increase in salary. 19 Conformably therewith, we find the movement of Nacario
one of lateral transfer. 20

A careful examination of the qualifications, powers and duties of a Budget Officer and an MPDC
provided under Secs. 475 and 476 of the Local Government Code of 1991 shows that the latter
office is not burdened with more duties and responsibilities than the former. It is also interesting
to note that there was, on the contrary, a reduction in the basic salary of Nacario, from
P30,505.20 per annum 21 as Budget Officer to P27,732.00 per annum 22 as MPDC. Moreover,
private respondent admitted in her comment and in her memorandum that the position of Budget
Officer and MPDC were of the same rank, salary grade and level. 23 This was attested to by
Vilma J. Martus, the Human Resource Management Officer of Pili, who certified that per
Position Allocation List (PAL) of the municipality the Budget Officer and MPDC are of equal
level. 24

Aside from the lack of a series of promotions, the other two (2) requisites are not also present,
i.e., the appointments of the parties concerned were not simultaneously submitted to the CSC for
approval the appointment (permanent) of Nacario was approved by the CSC on 13 June 1985
while the appointment (permanent) of San Luis was approved by the CSC on 9 February 1993
and, the ouster of Nacario from the Office of MPDC was a result of the MSPB decision directing
the reinstatement of Mancita and not because the CSC disapproved her appointment as MPDC.

While the contemporaneous construction of Sec. 13 by the CSC is entitled to great weight and
respect, this Court shall depart from such interpretation when it is clearly erroneous 25 or when
there is no ambiguity in the rule, 26 as in the instant case, and yield to the letter of the law taking
its terms in their plain, ordinary and popular meaning. 27

Let us now examine whether the lateral transfer of private respondent was validly made in
accordance with Sec. 5, par. 3, Rule VII, Omnibus Rules Implementing Book V of E.O. 292. If
not, then private respondent is entitled to be protected in her security of tenure.

Sec. 5, par. 3, of Rule VII provides that

Transfer shall not be considered disciplinary when made in the interest of public service, in
which case, the employee concerned shall be informed of the reasons therefor. If the employee
believes that there is no justification for the transfer, he may appeal his case to the commission.
(emphasis supplied)

According to Nacario she never applied or sought appointment by transfer to the position of
MPDC since she even had no prior knowledge of her appointment. 28 She assumed the new
position only in order to comply with the move of Mayor Prila to supposedly "reorganize" the
municipal government of Pili. Nacario did not question her transfer because she revered the
mayor and did not in any way intend to displease him.

The submissive attitude displayed by private respondent towards her transfer is understandable.
Although Nacario was not informed of the reasons therefor she did not complain to the mayor or
appeal her case to the CSC if in fact the same was not made in the interest of public service. For
it is not common among local officials, even those permanent appointees who are more secured
and protected in their tenurial right, to oppose or question the incumbent local executive on his
policies and decisions no matter how improper they may seem.

Even as early as 1968, in Nemenzo v. Sabillano, 29 we held that

There are altogether too many cases of this nature, wherein local elective officials, upon
assumption of office, wield their new-found power indiscriminately by replacing employees with
their own proteges, regardless of the laws and regulations governing the civil service. Victory at
the polls should not be taken as authority for the commission of such illegal acts.

Private respondent was the Budget Officer of Pili for almost eight (8) years from August 1980
until her transfer in July, 1988. 30 Nacario appeared to be satisfied with her work and felt
fulfilled as Budget Officer until Mayor Prila appointed her MPDC to fill up the position, which
was not even vacant at that time. It was only seven (7) days after Nacario's appointment when
Mayor Prila informed Mancita that her services were being terminated. Simply put, Mayor Prila
was so determined in terminating Mancita that he conveniently pre-arranged her replacement by
Nacario. Although Nacario continued to discharge her duties, this did not discourage her from
trying to regain her former position. Undaunted, she applied with the Office of the Budget
Secretary for the position of Budget Officer upon learning that it was placed under the
Department of Budget and Management. She was not however successful.

In Sta. Maria v. Lopez 31 we distinguished between a transfer and a promotion and laid down
the prerequisites of a valid transfer thus

A transfer is a "movement from one position to another which is of equivalent rank, level and
salary, without break in service." Promotion is the "advancement from one position to another
with an increase in duties and responsibilities as authorized by law, and is usually accompanied
by an increase in salary" . . . A transfer that results in promotion or demotion, advancement or
reduction or a transfer that aims to "lure the employee away from his permanent position,"
cannot be done without the employees' consent. For that would constitute removal from office.
Indeed, no permanent transfer can take place unless the officer or employee is first removed from
the position held, and then appointed to another position. (emphasis provided)

The rule that unconsented transfers amount to removal is not however without exception. As we
further said in Sta. Maria,

Concededly there are transfers which do not amount to removal. Some such transfers can be
effected without the need for charges being proffered, without trial or hearing, 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 assigned provided the transfer affects no substantial change in title, rank and
salary . . . . Such a rule does not proscribe 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 . . . . Neither does illegality attach to the transfer or
reassignment of an officer pending the determination of an administrative charge against him; or
to the transfer of an employee, from his assigned station to the main office, effected in good faith
and in the interest of the service pursuant to Sec. 32 of the Civil Service Act.

Clearly then, the unconsented lateral transfer of Nacario from the Budget Office to the Office of
MPDC was arbitrary for it amounted to removal without cause hence, invalid as it is anathema to
security of tenure. When Nacario was extended a permanent appointment on 1 August 1980 and
she assumed the position, she acquired a legal, not merely an equitable, right to the position.
Such right to security of tenure is protected not only by statute, but also by the Constitution 32
and cannot be taken away from her either by removal, transfer or by revocation of appointment,
except for cause, and after prior notice. 33

The guarantee of security of tenure is an important object of the civil service system because it
affords a faithful employee permanence of employment, at least for the period prescribed by law,
and frees the employee from the fear of political and personal prejudicial reprisal. 34

Consequently, it could not be said that Nacario vacated her former position as Budget Officer or
abdicated her right to hold the office when she accepted the position of MPDC since, in
contemplation of law, she could not be deemed to have been separated from her former position
or to have terminated her official relations therewith notwithstanding that she was actually
discharging the functions and exercising the powers of MPDC. The principle of estoppel, unlike
in Manalo v. Gloria, 35 cannot bar her from returning to her former position because of the
indubitable fact that private respondent reluctantly and hesitantly accepted the second office. The
element of involuntariness tainted her lateral transfer and invalidated her separation from her
former position.

For another thing, the appointment of San Luis as Budget Officer carried with it a condition. At
the back of his appointment is inscribed the notation Sa kondisyon nasa ayos ang pagkakatiwalag
sa tungkulin ng dating nanunungkulan, which when translated means "Provided that the
separation of the former incumbent is in order." Considering that the separation of Nacario who
was the former incumbent was not in order, San Luis should relinquish his position in favor of
private respondent Nacario. This is, of course, without prejudice to San Luis' right to be
reinstated to his former position as Cashier II of the DENR, he being also a permanent appointee
equally guaranteed security of tenure.

A final word. Petitioners cannot claim that they have been denied due process of law by public
respondent. The records reveal that petitioners had the opportunity to question the adverse
opinion rendered by CSC Chairperson Sto. Tomas in a letter dated 15 March 1993. 36 The
correspondence which was in the nature of a motion for reconsideration constitutes sufficient
opportunity for petitioners who felt aggrieved to inform the CSC of their side of the controversy.
What is sought to be safeguarded in the application of due process is not the lack of previous
notice but the denial of opportunity to be heard. 37

Before we write finis to this ponencia, we remind those public officials who flaunt their authority
and those similarly inclined to faithfully abide by the Constitution and observe honestly
and in good faith the tenurial security of public servants who serve the government with sincerity
and dedication. They should not be moved or removed from their established positions without
any lawful cause and pushed at will like pawns on the bureaucratic chessboard.

WHEREFORE, premises considered, the petition is DISMISSED. CSC Resolution No. 93-1996
is AFFIRMED insofar as it orders the reinstatement of PRESCILLA B. NACARIO to the Office
of Municipal Budget Officer of Pili, Camarines Sur. Accordingly, petitioner Mayor Delfin N.
Divinagracia, or whoever is now the incumbent Mayor of Pili or acting in his behalf, is
ORDERED to reinstate private respondent Prescilla B. Nacario immediately to the position of
Municipal Budget Officer of Pili and petitioner Alexis D. San Luis to vacate the said office
without prejudice to regaining his former position in the government if legally feasible and
warranted.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Romero, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco,
JJ., concur.

Quiason, J., is on leave.







Separate Opinions



DAVIDE, Jr., J., dissenting:

I respectfully submit that it is private respondent Prescilla B. Nacario who should bear the
prejudicial consequence of the reinstatement of Filomena R. Mancita to the position of
Municipal Planning and Development Coordinator (MPDC), formerly Municipal Development
Coordinator (MDC), and that in restoring Nacario to the position of Municipal Budget Officer
(MBO) and ousting therefrom petitioner Alexis San Luis, the public respondent acted with grave
abuse of discretion.

I gather from the ponencia the following facts:

Mancita was appointed to the position of MDC of Pili, Camarines Sur, on 1 August 1980. The
name of this office was changed to MPDC in March 1983.

On 10 June 1985, Mayor Anastacio M. Prila of Pili appointed Nacario, who was then holding the
position of MBO of Pili, as MPDC. This appointment was to take effect on 1 July 1985. Nacario
accepted the appointment and assumed office.

In his letter of 17 June 1985, Mayor Prila notified Mancita that her services as MDC would be
terminated effective at the close of business hours on 1 July 1985 on the ground that the office of
MDC was abolished as a result of the reorganization of the local government of Pili.

Nacario assumed her new office over the objection of Mancita who did not accept her
termination from the service and, instead, forthwith appealed to the Merit Systems Protection
Board (MSPB). In its decision of 20 June 1989, the MSPB declared illegal Mancita's termination
from the service, ruled that she was qualified for the position of MPDC, and ordered the new
mayor, petitioner Delfin N. Divinagracia, Jr., to reinstate Mancita to the position of MPDC with
back salaries. Divinagracia's appeal to the Civil Service Commission (CSC) was dismissed on 16
July 1990 per CSC Resolution No. 90-657.

On 15 October 1990, Divinagracia informed Nacario that her services as MPDC would be
terminated effective 16 November 1990 in compliance with the decision of the MSPB. Nacario
would not accept her termination. However, instead of going to the CSC for a possible
reconsideration of CSC Resolution No. 90-657, she filed with the Regional Trial Court (RTC) of
Camarines Sur a petition for declaratory relief and prohibition with preliminary injunction (Civil
Case No. P-17819) against CSC Chairperson Patricia A. Sto. Tomas, Mayor Divinagracia, the
CSC Regional Director, and Filomena Mancita. She prayed for the annulment of CSC Resolution
No. 90-657.

Mancita's motion to dismiss on the ground of lack of jurisdiction having been denied, she came
to this Court via a special civil action for certiorari, G.R. No. 98120, which this Court granted in
its decision of 22 December 1992 (216 SCRA 772[1992]). This Court held that the trial court
had no jurisdiction over Civil Case No. P-17819 because decisions, orders, or rulings of the CSC
are subject to review only by this Court under Rule 65 of the Rules of Court.

During the pendency of G.R. No. 98120, Nacario sent a query to the CSC asking about her status
as a permanent employee of the Municipality of Pili after she had accepted the position of
MPDC. In a letter dated 8 December 1990, the CSC opined that the reinstatement of Mancita to
the position of MPDC was not a valid cause for Nacario's termination and since she was the
former MBO, she has the right to return to the position of MBO.

In his letter of 15 March 1993, Divinagracia sought to reconsider the opinion for the reason that
petitioner San Luis was validly appointed as MBO by the Secretary of Budget and Management
and that this appointment was confirmed by the CSC. In its CSC Resolution No. 93-1996 of 27
May 1993, the CSC denied the request and upheld Nacario's right to security of tenure as MBO
pursuant to Section 13, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292.
This Section mandates the return of an appointment, in a chain of promotions, to his former
position once his appointment is subsequently disapproved.

As regards her former office of MBO which Nacario vacated, several persons held it after she
had assumed office as MPDC pursuant to the 10 June 1985 appointment extended her by Mayor
Prila. She was first replaced by Digna Isidro. A year later, Digna was succeeded by Eleonor
Villarico who served until 1 March 1990 when she resigned. It may be recalled that in 1988 the
Local Officers Services, which included the local budget office, was nationalized and placed
under the Department of Budget and Management (DBM). Consequently, the authority to
appoint the MBOs devolved on the Secretary of Budget and Management. Owing to the lack of
qualified candidates for the position, the vacancy lasted until 30 September 1991. In the
meantime, Juan Batan, the former MBO of Baao, Camarines Sur, was appointed officer-in-
charge. He was later replaced, also in such capacity, by Francisco Deocareza, the former MBO
of Naga City.

On 1 October 1991, Secretary Guillermo Carague of the DBM appointed in a temporary capacity
petitioner Alexis San Luis, then Cashier II of the Department of Environment and Natural
Resources (DENR), as MBO of Pili.

On 22 June 1992, after control over the Local Government Officers Services was returned to the
local government units concerned by virtue of the Local Government Code of 1991 (R.A. 7160)
as implemented by E.O. No. 503, San Luis was re-appointed, in a permanent capacity, as MBO
of Pili.

From the foregoing facts, it is clear that private respondent Nacario voluntarily accepted her
appointment as MPDC, thereby effectively relinquishing and abandoning her position as MBO.
She held the new position continuously and uninterruptedly, even peacefully, until, at the earliest,
15 October 1990 when she was told to vacate it to comply with the decision of the MSPB
reinstating Mancita. She was, as well, fully aware of the fact that several persons had succeeded
her as MBO. Nacario's explanation that she assumed the new position only in order to comply
with the move of Mayor Prila to reorganize the municipal government of Pili is implausible and
simply incredible. On the contrary, she appeared to have relished the prestige and ascendancy of
her new office and the challenge of a new role as coordinator of planning and development in the
municipality. If indeed she was "forced" to accept the new position, then she could have
requested the new mayor, Mayor Divinagracia, to return her to the position of MBO.

I find, as well, the conclusion in the majority opinion that her transfer to the position of MPDC
was an "unconsented lateral transfer" to be without factual basis. It should be noted that there
was no reception of evidence before the CSC. As earlier stated, Nacario merely sent to the CSC a
letter-query during the pendency of Mancita's petition in this Court (G.R. No. 98120) inquiring
about her status as a permanent employee of the Municipality of Pili after she had accepted the
position of MPDC. The letter-query seems to be a last-ditch effort at damage control after
Nacario realized her fatal mistake of invoking the regular court's jurisdiction to set aside the CSC
resolution reinstating Mancita. By then, however, Nacario had lost her period to seek relief from
CSC Resolution No. 90-657. Besides, since the CSC was aware of the pendency of G.R. No.
98120, it should not have entertained the letter-query.

Any suggestion of involuntariness in Nacario's acceptance of her appointment as MPDC appears
only in her memorandum. This Court should not accept it as the gospel truth.

On the other hand, the appointment of San Luis as MPDC was regularly done and without any
protest from Nacario. If the latter honestly believed that she was illegally and arbitrarily
transferred to the position of MPDC, she should have protested the appointment of San Luis.

Howsoever viewed, Nacario had lost her position as MBO of Pili by having voluntarily accepted
her appointment as MPDC and voluntarily and faithfully serving the new office. Even if the
majority's theory of "unconsented lateral transfer" was to be accepted, Nacario must further be
barred on the ground of estoppel.

If there is any party whose security of tenure should be protected, it is San Luis. Hence, he
should not be given his walking papers. The disposition in the majority opinion that the dismissal
is without prejudice to regaining his former position in the government if legally feasible is
inconsistent with its conclusion that Section 13, Rule VI of the Omnibus Rules Implementing
Book V of E.O. No. 292 on appointments involved in a chain of promotions is inapplicable to
this case.

I vote then to grant the petition.

Regalado, J., concurs.





Separate Opinions

DAVIDE, Jr., J., dissenting:

I respectfully submit that it is private respondent Prescilla B. Nacario who should bear the
prejudicial consequence of the reinstatement of Filomena R. Mancita to the position of
Municipal Planning and Development Coordinator (MPDC), formerly Municipal Development
Coordinator (MDC), and that in restoring Nacario to the position of Municipal Budget Officer
(MBO) and ousting therefrom petitioner Alexis San Luis, the public respondent acted with grave
abuse of discretion.

I gather from the ponencia the following facts:

Mancita was appointed to the position of MDC of Pili, Camarines Sur, on 1 August 1980. The
name of this office was changed to MPDC in March 1983.

On 10 June 1985, Mayor Anastacio M. Prila of Pili appointed Nacario, who was then holding the
position of MBO of Pili, as MPDC. This appointment was to take effect on 1 July 1985. Nacario
accepted the appointment and assumed office.

In his letter of 17 June 1985, Mayor Prila notified Mancita that her services as MDC would be
terminated effective at the close of business hours on 1 July 1985 on the ground that the office of
MDC was abolished as a result of the reorganization of the local government of Pili.

Nacario assumed her new office over the objection of Mancita who did not accept her
termination from the service and, instead, forthwith appealed to the Merit Systems Protection
Board (MSPB). In its decision of 20 June 1989, the MSPB declared illegal Mancita's termination
from the service, ruled that she was qualified for the position of MPDC, and ordered the new
mayor, petitioner Delfin N. Divinagracia, Jr., to reinstate Mancita to the position of MPDC with
back salaries. Divinagracia's appeal to the Civil Service Commission (CSC) was dismissed on 16
July 1990 per CSC Resolution No. 90-657.

On 15 October 1990, Divinagracia informed Nacario that her services as MPDC would be
terminated effective 16 November 1990 in compliance with the decision of the MSPB. Nacario
would not accept her termination. However, instead of going to the CSC for a possible
reconsideration of CSC Resolution No. 90-657, she filed with the Regional Trial Court (RTC) of
Camarines Sur a petition for declaratory relief and prohibition with preliminary injunction (Civil
Case No. P-17819) against CSC Chairperson Patricia A. Sto. Tomas, Mayor Divinagracia, the
CSC Regional Director, and Filomena Mancita. She prayed for the annulment of CSC Resolution
No. 90-657.

Mancita's motion to dismiss on the ground of lack of jurisdiction having been denied, she came
to this Court via a special civil action for certiorari, G.R. No. 98120, which this Court granted in
its decision of 22 December 1992 (216 SCRA 772[1992]). This Court held that the trial court
had no jurisdiction over Civil Case No. P-17819 because decisions, orders, or rulings of the CSC
are subject to review only by this Court under Rule 65 of the Rules of Court.

During the pendency of G.R. No. 98120, Nacario sent a query to the CSC asking about her status
as a permanent employee of the Municipality of Pili after she had accepted the position of
MPDC. In a letter dated 8 December 1990, the CSC opined that the reinstatement of Mancita to
the position of MPDC was not a valid cause for Nacario's termination and since she was the
former MBO, she has the right to return to the position of MBO.

In his letter of 15 March 1993, Divinagracia sought to reconsider the opinion for the reason that
petitioner San Luis was validly appointed as MBO by the Secretary of Budget and Management
and that this appointment was confirmed by the CSC. In its CSC Resolution No. 93-1996 of 27
May 1993, the CSC denied the request and upheld Nacario's right to security of tenure as MBO
pursuant to Section 13, Rule VI of the Omnibus Rules Implementing Book V of E.O. No. 292.
This Section mandates the return of an appointment, in a chain of promotions, to his former
position once his appointment is subsequently disapproved.

As regards her former office of MBO which Nacario vacated, several persons held it after she
had assumed office as MPDC pursuant to the 10 June 1985 appointment extended her by Mayor
Prila. She was first replaced by Digna Isidro. A year later, Digna was succeeded by Eleonor
Villarico who served until 1 March 1990 when she resigned. It may be recalled that in 1988 the
Local Officers Services, which included the local budget office, was nationalized and placed
under the Department of Budget and Management (DBM). Consequently, the authority to
appoint the MBOs devolved on the Secretary of Budget and Management. Owing to the lack of
qualified candidates for the position, the vacancy lasted until 30 September 1991. In the
meantime, Juan Batan, the former MBO of Baao, Camarines Sur, was appointed officer-in-
charge. He was later replaced, also in such capacity, by Francisco Deocareza, the former MBO
of Naga City.

On 1 October 1991, Secretary Guillermo Carague of the DBM appointed in a temporary capacity
petitioner Alexis San Luis, then Cashier II of the Department of Environment and Natural
Resources (DENR), as MBO of Pili.

On 22 June 1992, after control over the Local Government Officers Services was returned to the
local government units concerned by virtue of the Local Government Code of 1991 (R.A. 7160)
as implemented by E.O. No. 503, San Luis was re-appointed, in a permanent capacity, as MBO
of Pili.

From the foregoing facts, it is clear that private respondent Nacario voluntarily accepted her
appointment as MPDC, thereby effectively relinquishing and abandoning her position as MBO.
She held the new position continuously and uninterruptedly, even peacefully, until, at the earliest,
15 October 1990 when she was told to vacate it to comply with the decision of the MSPB
reinstating Mancita. She was, as well, fully aware of the fact that several persons had succeeded
her as MBO. Nacario's explanation that she assumed the new position only in order to comply
with the move of Mayor Prila to reorganize the municipal government of Pili is implausible and
simply incredible. On the contrary, she appeared to have relished the prestige and ascendancy of
her new office and the challenge of a new role as coordinator of planning and development in the
municipality. If indeed she was "forced" to accept the new position, then she could have
requested the new mayor, Mayor Divinagracia, to return her to the position of MBO.

I find, as well, the conclusion in the majority opinion that her transfer to the position of MPDC
was an "unconsented lateral transfer" to be without factual basis. It should be noted that there
was no reception of evidence before the CSC. As earlier stated, Nacario merely sent to the CSC a
letter-query during the pendency of Mancita's petition in this Court (G.R. No. 98120) inquiring
about her status as a permanent employee of the Municipality of Pili after she had accepted the
position of MPDC. The letter-query seems to be a last-ditch effort at damage control after
Nacario realized her fatal mistake of invoking the regular court's jurisdiction to set aside the CSC
resolution reinstating Mancita. By then, however, Nacario had lost her period to seek relief from
CSC Resolution No. 90-657. Besides, since the CSC was aware of the pendency of G.R. No.
98120, it should not have entertained the letter-query.

Any suggestion of involuntariness in Nacario's acceptance of her appointment as MPDC appears
only in her memorandum. This Court should not accept it as the gospel truth.

On the other hand, the appointment of San Luis as MPDC was regularly done and without any
protest from Nacario. If the latter honestly believed that she was illegally and arbitrarily
transferred to the position of MPDC, she should have protested the appointment of San Luis.

Howsoever viewed, Nacario had lost her position as MBO of Pili by having voluntarily accepted
her appointment as MPDC and voluntarily and faithfully serving the new office. Even if the
majority's theory of "unconsented lateral transfer" was to be accepted, Nacario must further be
barred on the ground of estoppel.

If there is any party whose security of tenure should be protected, it is San Luis. Hence, he
should not be given his walking papers. The disposition in the majority opinion that the dismissal
is without prejudice to regaining his former position in the government if legally feasible is
inconsistent with its conclusion that Section 13, Rule VI of the Omnibus Rules Implementing
Book V of E.O. No. 292 on appointments involved in a chain of promotions is inapplicable to
this case.

I vote then to grant the petition.

Regalado, J., concurs.

TRANSFER
PALMA-FERNANDEZ VS DELAPAZ
G.R. No. 78946 April 15, 1988

DR. NENITA PALMA-FERNANDEZ, petitioner,
vs.
DR. ADRIANO DE LA PAZ, DR. SOSEPATRO AGUILA, and THE SECRETARY OF
HEALTH, respondents.

Oscar C. Fernandez for petitioner.

The Solicitor General for respondents.



MELENCIO-HERRERA, J.:

This is a Petition for Quo Warranto filed by petitioner, Dr. Nenita Palma-Fernandez, claiming
entitlement to the position of Assistant Director for Professional Services at the East Avenue
Medical Center (formerly Hospital ng Bagong Lipunan) alleged to be unlawfully held by private
respondent, Dr. Sosepatro Aguila.

The background facts follow:

On 1 May 1985, petitioner was extended a permanent appointment to the position of Chief of
Clinics at the Hospital ng Bagong Lipunan (now East Avenue Medical Center) by then Minister
of Health and Chairman of the Board of Governors of the Center, Jesus C. Azurin.

Previous to this appointment, petitioner, a career physician, occupied the positions of Medical
Specialist I in 1978, Medical Specialist II from October 1982 to April 1985, until her
appointment as Chief of Clinics on 1 May 1985. Even during her incumbency as Medical
Specialist II, petitioner was already designated as Acting Chief of Clinics since September 1983
up to her permanent appointment to said position.

As Chief of Clinics, petitioner exercised direct control and supervision over all heads of
departments in the Medical Center

In 1986, the new organizational structure of the Center retitled the position of Chief of Clinics to
Assistant Director for Professional Services. In partial implementation of this new set-up,
respondent Dr. Adriano de la Paz, as Medical Center Chief, issued Hospital Order No. 30, Series
of 1986, on 8 August 1986, designating petitioner as Assistant Director of Professional Services
(Annex 3, Comment, p. 48, Rollo). As such, she continued to exercise direct control and
supervision over all heads of departments in the Medical Center.

On 30 January 1987, Executive Order No. 119 known as the "Reorganization Act of the Ministry
of Health" was promulgated.

On 29 May 1987, respondent De la Paz, as Medical Center Chief, designated respondent Dr.
Aguila, who was then Medical Specialist I, as Assistant Director for Professional Services "vice
Dr. Nenita Palma-Fernandez, who will be transferred to the Research Office." (Hospital Order
No. 21, series of 1987, Annex B, Petition). Said order was purportedly issued "in the interest of
the hospital service."

On the same date, Hospital Order No. 22, series of 1987, (Annex C, Petition), was issued by
respondent De la Paz, whereby petitioner was relieved "of her present duties and responsibilities
as Chief of Clinic and hereby transferred to the Research Office. This order being issued in the
interest of the hospital service.

Upon receipt of Hospital Order No. 22, petitioner filed on 1 June 1987 a letter-protest with
respondent Secretary of Health, furnishing copies to respondents De la Paz and Aguila, as well
as to the Commissioner of Civil Service and the Chairman of the Government Reorganization
Commission.

Failing to secure any action on her protest within a month's time, petitioner filed on 8 July 1987
the instant Petition for Quo Warranto with Preliminary Injunction against respondents Dr. de la
Paz, Dr. Aguila, and the Secretary of Health.

On 14 July 1987, this Court issued a Temporary Restraining Order enjoining the implementation
of Hospital Orders Nos. 21 and 22, series of 1987.

After considering and deliberating on all Comments, the Reply, and the Rejoinder of the
Solicitor General to said Reply, the Court, on 17 March 1988, Resolved to give due course to the
Petition, and dispensing with memoranda, declared the case submitted for resolution.

The Solicitor General has aptly framed the issues for resolution as follows:

1. Whether or not respondent De la Paz has the power or authority to issue the two Hospital
Orders in question;

2. Whether or not petitioner has a valid cause of action; and

3. Whether or not the rule on exhaustion of administrative remedies precludes the filing of the
instant Petition.

The Solicitor General, on behalf of the Secretary of Health, makes common cause with petitioner
and answers the first and third issues in the negative, and the second in the affirmative. For their
part, Respondents De la Paz and Aguila uphold the opposite views.

We rule for petitioner.

1. Since the East Avenue Medical Center is one of the National Health Facilities attached to the
Department of Health, the power to appoint and remove subordinate officers and employees, like
petitioner, is vested in the Secretary of Health, not the Medical Center Chief. The latter's
function is confined to recommendation. Thus, Section 79 (D). of the Revised Administrative
Code provides:

Section 79 (D). Power to appoint and remove. The Department Head, upon the
recommendation of the Chief of the bureau or office concerned, shall appoint all subordinate
officers and employees whose appointment is not expressly vested by law in the President of the
Philippines, and may remove or punish them, except as especially provided otherwise, in
accordance with the Civil Service Law...

The Department Head also may, from time to time, in the interest of the service, change the
distribution among the several bureaus and offices of his Department of the employees or
subordinates authorized by law.

Executive Order No. 119, or the Reorganization Act of the Ministry of Health, likewise states:

SEC. 26. New Structure and Pattern...

The new position structure and staffing pattern of the Ministry shag be prescribed by the
Minister within one hundred twenty (120) days from the approval of this executive order subject
to approval by the Office of Compensation and Classification and the authorized positions
created thereunder shall be filled thereafter with regular appointments by him or the President, as
the case may be as herein provided...

Respondent Medical Center Chiefs argument that petitioner was not appointed but was merely
transferred in the interest of the public service to the Research Office pursuant to Section 24 (c)
of Presidential Decree No. 807, or the Civil Service Decree of the Philippines 1 will not alter the
situation. Even a transfer requires an appointment, which is beyond the authority of respondent
Medical Center Chief to extend, supra. Besides, the transfer was without petitioner's consent,
was tantamount to removal without valid cause, and as such is invalid and without any legal
effect (Garcia, et al. vs. Lejano, et al., 109 Phil. 116). A removal without cause is violative of the
Constitutional guarantee that "no officer or employee of the civil service shall be removed or
suspended except for cause provided by law" (Article IX, B, Section 2(3),1987 Constitution).

Petitioner's "designation" as Assistant Director for Professional Services on 8 August 1986 in
accordance with the organizational structure of the Department of Health under Hospital Order
No. 30, Series of 1986, issued by respondent Medical Center Chief did not make her occupancy
of that position temporary in character. It bears stressing that the positions of Chief of Clinics
and Assistant Director for Professional Services are basically one and the same except for the
change in nomenclature. Petitioner's permanent appointment on 1 May 1985 to the position of
Chief of Clinics, therefore, remained effective.

Neither can respondent Medical Center Chief rely on Section 2, Article III of the Freedom
Constitution and its Implementing Rules and Regulations embodied in Executive Order No. 17,
Series of 1986. The relevant provision was effective only "within a period of one year from
February 25, 1 986." 2 The Hospital Orders in question were issued only on 29 May, 1987.

Executive Order No. 119, or the 'Reorganization Act of the Ministry of Health" promulgated on
30 January 1987, neither justifies petitioner's removal. The pertinent provision thereof reads:

Sec. 26. 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 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 2 February 1987 when the 1987 Constitution became effective (De Leon, et al. vs. Hon.
Benjamin B. Esquerra, et al., G.R. No. 78059, 31 August 1987). After the said date the
provisions of the latter on security of tenure govern.

And while it may be that the designation of respondent Aguila as Assistant Director for
Professional Services and the relief of petitioner from the said position were not disapproved by
respondent Secretary of Health, it by no means implies that the questioned acts of respondent
Medical Center Chief were approved by the former official.

2. It follows from the foregoing disquisition that petitioner has a valid cause of action. Where
there is usurpation or intrusion into an office, quo warranto is the proper remedy. (Lota vs. Court
of Appeals, No. L-14803, June 30, 1961, 2 SCRA 715).

3. The doctrine on exhaustion of administrative remedies does not preclude petitioner from
seeking judicial relief This rule is not a hard and fast one but admits of exceptions among which
are that (1) the question in dispute is "purely a legal one" and (2) the controverted act is 'patently
illegal" (Carino vs. ACCFA, No. L-19808, September 29,1966,18 SCRA 183). The questions
involved here are purely legal. The subject Hospital Orders violated petitioner's constitutional
right to security of in tenure and were, therefore, "patently illegal." Judicial intervention was
called for to enjoin the implementation of the controverted acts.

There was substantial compliance by petitioner with the requirement of exhaustion of
administrative remedies since she had filed a letter-protest With the respondent Secretary of
Health, with copies furnished the Commissioner of Civil Service, and the Chairman of the
Government Reorganization Commission, but the same remained unacted upon and proved an
inadequate remedy. Besides, an action for quo warranto must be filed within one year after the
cause of action accrues (Sec. 16, Rule 66, Rules of Court), and the pendency of administrative
remedies does not operate to suspend the running of the one-year period (Cornejo vs. Secretary
of Justice L-32818, June 24, 1974, 57 SCRA 663).

WHEREFORE, the Writ of Quo Warranto is granted and petitioner, Dr. Nenita Palma-Fernandez,
is hereby held entitled to the position of Assistant Director of Professional Services of the East
Avenue Medical Center up to the expiration of her term. The Temporary Restraining Order
heretofore issued enjoining the implementation of Hospital Orders Nos. 21 and 22, both dated 29
May 1987, is hereby made permanent.

SO ORDERED.
CHATO VS NATIVIDAD
G.R. No. 113843 June 2, 1995

HON. LIWAYWAY VINZONS-CHATO, in her capacity as Commissioner of Internal Revenue,
and SOLON B. ALCANTARA, petitioners,
vs.
HON. ELI G.C. NATIVIDAD, Presiding Judge of Branch 48, Regional Trial Court of San
Fernando, Pampanga, and SALVADOR NORI B. BLAS, respondents.



MENDOZA, J.:

This is a petition for certiorari to annul the order dated February 7, 1994 of respondent judge of
the Regional Trial Court of San Fernando, Pampanga in Civil Case No. 10066, enjoining
petitioner Commissioner of Internal Revenue from transferring respondent Nori B. Blas, as
revenue district officer from San Fernando, Pampanga to Tuguegarao, Cagayan.

The facts of the case are as follows:

On October 26, 1993, President Fidel V. Ramos issued E.O. No. 132, entitled "Approving the
Streamlining of the Bureau of Internal Revenue."

Pursuant to this Order, Commissioner Liwayway Vinzons R. Chato issued on December 1, 1993
Revenue Administrative Order No. 5-93, "Redefining the areas of jurisdiction and renumbering
of regional district offices. "The order subdivided the nineteen revenue regions provided for
under the National Internal Revenue Code into 115 revenue districts and renumbered the
resulting revenue district office (RDOs). In addition, it abolished the previous classification of
RDOs into Class A-1, A, B, C, and D and provided that henceforth all RDOs shall be treated as
the same class. 1

On December 10, 1993, petitioner Commissioner of Internal Revenue, citing the "exigencies of
the revenue service," issued Revenue Travel Assignment Order No. 80-93 (RTAO 80-93),
directing ninety revenue district officers to report to new assignments in the redesignated and
renumbered revenue district offices nationwide.

Among those affected by the reassignment was private respondent Salvador Nori Blas, who was
ordered to report to Revenue District No. 14 in Tuguegarao, Cagayan. In turn, petitioner Solon B.
Alcantara was ordered to report to Blas' former post in San Fernando, Pampanga, now known as
Revenue District No. 21.

On December 15, 1993, private respondent wrote petitioner Commissioner requesting a
reconsideration of his transfer. He felt that his accomplishments and performance had not been
taken into consideration in the reshuffle and that his transfer from what he thought is the larger
revenue district of San Fernando, Pampanga to the smaller district in Tuguegarao, Cagayan was a
demotion. He claimed that he was among the top ten examiners of Revenue Region No. 5 for six
consecutive years and that he was a model employee in 1981. In addition, he mentioned that he
was a diabetic and that he needed to be near his doctor, and could not endure long travels.

On January 19, 1994, with his letter unacted upon, private respondent filed with the Regional
Trial Court a verified complaint for "Injunction with Preliminary Injunction and Temporary
Restraining Order" against the Commissioner and petitioner Alcantara. He alleged that the
transfer without his consent from the revenue district in San Fernando, which was formerly
designated as a Class "A," to the revenue district in Tuguegarao, which was classified as a Class
"C," with a smaller pool of personnel and only one-fourth of the revenue capacity of Pampanga,
would cause his "dislocation" and demotion or "a diminution in rank, status, and span of duties
and responsibilities." He invoked E.O. No. 132, that

2. Redeployment of Personnel. The redeployment of officials and other personnel on the basis
of the streamlining embodied in this Executive Order shall not result in the dislocation of
existing personnel nor in the diminution of rank and compensation and shall take into account
pertinent Civil Service Law and rules.

On January 20, 1994, the respondent judge issued a temporary restraining order and set the
hearing on the application for a writ of preliminary injunction on January 28, 1994.

On February 7, 1994, he granted the writ of preliminary injunction, stating:

After the hearing, it is clear from [sic] the Court that what is to be resolved in determining
whether or not an injunction lies are the following issues: whether or not there is a reduction in
duties and responsibilities; whether or not, there was a demotion and dislocation on the part of
the plaintiff when the public defendant Chato issued Revenue Travel Assignment Order (RTAO)
No. 80-93.

Considering that in order for the Court to squarely resolve and properly ventilate the issues
above-stated, the Court deemed it wise and proper that the same be threshed out in a full blown
trial and to maintain status quo, this Court hereby grants the application for the issuance of a writ
of preliminary injunction and fixes the bond to be posted by the plaintiff in the amount of
P5,000.00, to answer for the damages which the defendants may sustain by reason of the
injunction if the Court should finally decide that the plaintiff was not entitled thereto.

WHEREFORE, defendant Liwayway Vinzons-Chato, the Commissioner of Internal Revenue, is
hereby ordered and directed to cease and desist in enforcing Revenue Travel Assignment Order
(RTAO) No. 80-93 dated December 10, 1993 as far as the plaintiff herein is concerned; and
defendant Solon B. Alcantara to cease and desist from assuming office as Revenue District
Officer of District 18 (now 21), San Fernando, Pampanga, pending the hearing on the merits of
the injunction case, unless a contrary order is issued.

SO ORDERED.

On February 24, 1994, the Commissioner filed the present petition assailing this Order.

Petitioner alleges that respondent judge acted with grave abuse of discretion in issuing the
preliminary injunction because nowhere in the order was it stated that private respondent had a
right which was violated as a result of the issuance the reassignment of regional revenue officers
under of RTAO 80-93.

Petitioner argues, firstly, that private respondent did not have any vested right to his station in
San Fernando, Pampanga since he was only designated to the post and not appointed thereto.
Neither did private respondent show any right to be exempted from the reorganization.

Secondly, petitioner argues that the transfer was made pursuant to E.O. No. 132, and this being
so, it should not be considered disciplinary in nature. On the contrary, it was made in the interest
of the public service, as an exception to the rule requiring the employee's consent in non-
disciplinary transfers.

Thirdly, neither was the transfer a demotion, since there was no reduction in duties,
responsibilities, status, rank, or salary. Petitioner cited the fact that RTAO 80-93 had abolished
all classes of RDOs and considered them to be of the same class. Private respondent's reliance on
the classifications previously followed was, therefore, without basis.

Fourthly, petitioner contends that the failure of private respondent to exhaust all administrative
remedies prior to filing the case was a jurisdictional defect and a valid ground for dismissal of
the case in the RTC. Petitioner cites P.D. No. 807, 24(c) which provides that if an employee
believes his transfer to be unjustified, he may appeal his case to the Civil Service Commission.
Resort to the court was premature and respondent judge should have dismissed the case.

Petitioner further argues that the issue is moot and academic since petitioner Alcantara took his
post as revenue district officer of Pampanga on January 3, 1994, before the action below was
filed on January 19, 1994. Consequently there was no status quo to be preserved by the issuance
of a preliminary injunction.

On the other hand, private respondent contends:

1. Private respondent never claimed, and does not claim, that he has any vested right at all to his
present assignment/designation as the Revenue District Officer of Revenue District 18 (Re-
numbered 21) at San Fernando, Pampanga. All that he asserts is his constitutional right to
protection from a demotion not for cause, and without his consent under the guise of a "transfer
in the exigencies of the service"; (Annex "A", copy of complaint in Civil Case No. 10066, RTC
Br. 48, 3rd Judicial Region, San Fernando, Pampanga)

2. Private respondent never did, and does not question the power of, nor the need for, the
Commissioner of Internal Revenue to "reshuffle" personnel in the interest of ensuring better
more honest public service from the BIR;

3. The basic petition never questioned the validity of the entire "Revenue Travel Assignment
Order No. 80-93" dated 10 December 1993 which sought to "reshuffle" ninety (90) revenue
district officers in fourteen (14) BIR regions in Luzon and the Visayas. Hence the claim that the
government efforts at reorganizing the revenue district service would be "derailed" by a dispute
on the unconstitutionality of the demotion of one such revenue district officer is sheer
speculation, not grounded on reality. On the other hand, it is the injustice, oppression and the
manifest disregard of the constitutional standards of merit and fitness, committed under the guise
of such reorganization that will definitely erode the morale and hamper the consequent
performance of BIR personnel.

He contends that his transfer constitutes a demotion because, in effect, his span of control in
terms of jurisdiction and personnel has been considerably diminished. He claims that he has
earned, through hard work, as evidenced by his service record, the position at San Fernando,
Pampanga which has a larger staff and revenue capacity and is much closer to Manila.

Private respondent likewise denies that petitioner Alcantara assumed office as revenue district
officer of Pampanga because, according to private respondent, he never relinquished his position.
Hence, there was a status quo that could be served by the injunction.

We issued a temporary restraining order on March 1, 1994 enjoining respondent judge to cease
and desist from implementing his order of February 7, 1994 and ordered the respondents to
comment on the petition.

We find the-petition to be meritorious.

Private respondent has shown no clear legal right to the issuance of a writ of preliminary
injunction but despite this fact the trial court issued his questioned order enjoining petitioner
from transferring private respondent.

In his complaint below, private respondent claimed that he demoted because,

the revenue district that is the northernmost mainland province of Cagayan has only one-fourth
(1/4) the revenue capacity of Pampanga, plaintiff's present station (Cagayan P45.5 million;
Pampanga P194.1 million; '87 BIR Annual Report); a diminution in rank, status and span of
duties and responsibilities; and a dislocation from Pampanga, a province 100 kilometers north of
Manila, to Cagayan; over 500 kilometers northeast of Manila; 2

But his transfer to the Tuguegarao revenue district, as petitioner Commissioner explained in her
opposition to the application for a writ of preliminary injunction, did not really entail any
diminution in rank, salary, status and responsibilities. Private respondent's claim that the
Tuguegarao revenue district is smaller than that in San Fernando, Pampanga has no basis
because, as already noted, the classification of RDOs' into Class A-1, A, B, C and D has been
abolished and all RDO's are now considered to be of the same class.

Nor did petitioner allege in his complaint below that he had a vested right to his post as revenue
district officer of Revenue District No. 21 (formerly No. 18) in San Fernando, Pampanga. The
trial court's order granting the writ of preliminary injunction cites no right of private respondent
which might have been violated as a result of his unconsented transfer to Tuguegarao. The only
reason given for the writ of preliminary injunction is that it is needed to preserve the status quo
until the issues can be "threshed out in full blown trial."

But the preservation of the status quo is not alone sufficient to justify the issuance of an
injunction. The plaintiff must show that he has a clear legal right; that such right has been
violated; and that he is entitled to the relief he demands, consisting in restraining the commission
of the acts complained of. 3

Indeed, private respondent's transfer is part of a nationwide reshuffle or reassignment of revenue
district officers designed to improve revenue collection. More specifically the objective of the
reassignment, as stated in Revenue Administrative Order No. 5-93, is "to strengthen the
decentralization of the Bureau's set-up for the purpose of maximizing tax assessments and
revenue collections, intensifying enforcement of revenue laws and regulations and bringing the
revenue service closer to the taxpaying public."

It could be that private respondent is being transferred to a revenue district which he claims has
less revenue capacity than San Fernando, Pampanga, precisely to improve the capacity of the
new assignment. His new assignment should therefore be considered by him a challenge to his
leadership as revenue district officer rather than a demotion or a penalty. In Department of
Education, Culture and Sports vs. Court of Appeals, 4 the respondent, who was principal of the
Carlos Albert High School, was transferred to the Manuel Roxas High School because of the
exigencies of the service. She questioned the order on the same ground advanced by private
respondent in this case that it was in violation of her right to security of tenure. In rejecting her
contention this Court ruled:

It should be here emphasized that Azurin's letter of August 12, 1982, clearly stated that Navarro's
reassignment is in the exigencies of the service. It was explicitly mentioned that her
reassignment is a recognition of her capabilities as administrator in improving the Carlos Albert
High School and that she should look at her new assignment as a challenge to accomplish new
and bigger projects for Manuel Roxas High School. Moreover, her reassignment was the result of
a recognition/reshuffling of all principals in the Quezon City public schools in the exigencies of
the service pursuant to MEC Circular No. 26, Series of 1972. This circular refers to the policy of
the Ministry of Education that principals, district supervisors, academic supervisors, general
education supervisors, school administrative officers and superintendent are to be transferred
upon completion of five (5) years of service in one station. Such policy was based on the
experience that when school officials have stayed long enough in one station, there is a tendency
for them to become stale and unchallenged by new situations and conditions, and that some
administrative problems accumulate for a good number of years. (Emphasis added)

Private respondent failed to show patent illegality in the action of the Commissioner constituting
violation of his right to security of tenure. To sustain his contention that his transfer constitutes a
demotion simply because the new assignment is not to his liking would be to subordinate
government projects, along with the great resources and efforts they entail, to the individual
preferences and opinions of civil service employees. Such contention would negate the principle
5 that a public office is a public trust and that it is not the private preserve of any person. In
granting an injunction despite the absence of any legal right to be protected, respondent
committed a grave abuse of its discretion.

Moreover, under the law, any employee who questions the validity of his transfer should appeal
to the Civil Service Commission. Respondent judge should have dismissed the action below for
failure of private respondent to exhaust administrative remedies. 6

While this case was pending in this Court, private respondent filed three separate motions to cite
petitioner for contempt. The first, filed on May 16, 1994, alleged that petitioner had filed an
administrative complaint for gross insubordination against private respondent for refusing to take
his new assignment and that this was an act of harassment on the part of petitioner.

On July 8, 1994, private respondent filed another motion in which he claimed that petitioner had
ordered him preventively suspended in connection with another case filed against him for grave
misconduct, for having allegedly caused the investigation of the 1991 Income Tax and Value-
Added Tax cases of the Central Fermentation Industrial Corporation.

On February 20, 1995, private respondent filed a third motion, alleging that petitioner rendered a
decision in the case for gross insubordination and imposed on private respondent the penalty of
suspension for 6 months and 1 day.

The first and second motions are based on private respondent's allegation that pending the
determination of the validity of his transfer by the trial court and this Court, he could not be
compelled to assume the new post. But the writ of preliminary injunction issued by the trial court,
which enjoined the transfer of private respondent, was countermanded by the temporary
restraining order subsequently issued by this Court, with the result that his transfer became again
effective. There was nothing to stop the petitioner from enforcing her Revenue Travel
Assignment Order No. 80-93. 7

On the other hand, the filing of another administrative case against private respondent for grave
misconduct appears to have no relation at all to his transfer to a new post or to the fact that he
could no longer act as Revenue District Officer on any case in Pampanga. The administrative
case is based on the fact that he allegedly violated a Revenue Memorandum Order No. 31-93,
prohibiting the investigation of tax cases. The charge is that private respondent caused the
investigation of the 1991 Income Tax and Value Added Tax cases of the Central Fermentation
Industrial Corp. There is, therefore, no basis for private respondent's complaint that in instituting
the administrative case, petitioner committed contempt of this Court.

WHEREFORE, the petition is GRANTED and the order dated February 7, 1994 of respondent
judge is ANNULLED AND SET ASIDE, and private respondent's complaint in the trial court is
DISMISSED.

Private respondent's motions for contempt are DENIED.

SO ORDERED.

TEOTICO VS AGDA
G.R. No. 87437 May 29, 1991

JOAQUIN M. TEOTICO, petitioner,
vs.
DEMOCRITO O. AGDA, SR., and HON. JUDGE IGNACIO M. CAPULONG, Regional Trial
Court, Branch No. 134, Makati, Metro Manila, respondents.

Ramon M. Miranda for private respondent.



DAVIDE, JR., J.:p

Petitioner, Administrator of the Fiber Industry Development Authority, assisted by the Office of
the Solicitor General, filed this original petition for certiorari and prohibition, with a prayer for a
writ of preliminary injunction and for temporary restraining order. He urges Us to annul the
Orders of 16 and 29 December 1988 and 14 February 1989, and the writ of injunction dated 11
May 1988 issued by respondent Judge of Branch 134 (Makati, Metro Manila) of the Regional
Trial Court, National Capital Judicial Region, in Civil Case No. 88-577; 1 to prohibit respondent
Judge from hearing said case; and to order the dismissal thereof for lack of cause of action as
private respondent (petitioner therein, and who shall hereafter be referred to as Agda) has not
exhausted all administrative remedies available to him.

In Our resolution of 12 April 1989 2 We required respondents to comment on the petition and
issued a Temporary Restraining Order effective as of that date and continuing until otherwise
ordered by the Court.

The factual antecedents as culled from the Petition in this case and the Amended Petition of
Agda in Civil Case No. 88-577 are as follows:

On 2 January 1984, Honorable Cesar Lanuza, then Administrator of the Fiber Development
Authority (FIDA for short), an agency attached to the Department of Agriculture, appointed
Agda as CHIEF FIBER DEVELOPMENT OFFICER (Range 73) of the FIDA effective upon
assumption of office. 3

This appointment does not indicate any specific station or place of assignment.

Under Special Order No. 29, series of 1984, dated 2 January 1984, which was to take effect
immediately and to "remain in force until revoked," Administrator Lanuza designated Agda as
"Acting Regional Administrator for FIDA Regions I and II." 4

In Special Order No. 219 dated 13 November 1987, series of 1987, Administrator Lanuza
"temporarily re-assigned" Agda, "in the interest of the service," at the main office of the
Administrator to perform special functions which may be assigned to him, and one Mr. Epitacio
Lanuza, Jr., Assistant Fiber Regional Administrator, was designated Officer in Charge of FIDA
Region I. 5

On 9 December 1987 Agda prepared for filing with the Civil Service Commission, the Secretary
of the Department of Agriculture, and the Commission on Audit an Urgent Petition To Stop
Implementation and Nullify Special Order No. 219, s. '87, alleging therein that the Special Order
is (a) devoid of legal basis as it does not preserve and maintain a status quo before the
controversy, (b) against the interest of public service considering that Epitacio Lanuza has been
cited for two cases both involving dishonesty, abuse of privileges and character unbecoming a
government official, (c) improper, inappropriate and devoid of moral justification, and (d) a
violation of Civil Service rules and regulation considering that it violates the rule on nepotism
since Epitacio Lanuza and Administrator Lanuza are cousins. 6 The copy of the Civil Service
Commission was personally indorsed to it by Agda on 14 December 1987 for its "proper
resolution, perusal and appropriate action." The Merit Systems Protection Board indorsed it on
21 January 1988 to the Secretary of the Department of Agriculture for comment and/or
appropriate action. 7

Earlier however, or on 11 December 1987, by Special Order No. 239, series of 1987,
Administrator Lanuza designated Mr. Wilfredo Seguritan, Supervising Fiber Development
Officer, as Officer in Charge of FIDA Region I vice Mr. Epitacio Lanuza, Jr., who was ordered
relieved as such pending the final determination of the case filed against him by the Board of
Personnel Inquiry of the Department of Agriculture. 8

On 7 January 1988, herein petitioner (hereafter referred to as Teotico), as Acting Administrator
of FIDA issued a Memorandum to Agda directing him to immediately submit his development
programs for Region I for the years 1988 to 1993 and his proposals concerning the potentials for
sericulture and the maguey industry in the Region. 9

In his 1st indorsement of 12 January 1988, Agda returned the aforesaid Memorandum to Teotico
with the comment that it is in the best interest of the service that submission of the required
proposals be deferred since Special Order No. 219 had re-assigned him to FIDA Central Office
where "he now reports up to the present," while Wilfredo Seguritan, per Special Order No. 239,
is the OIC of FIDA for the Region. He suggested, however, that if compliance is imperative,
Special Order No. 219 should be reconsidered and set aside. 10

On 2 March 1988 Teotico issued a Memorandum to Agda informing him that although Special
Order No. 219 instructed him to report to the Office of the Administrator, he has neither been
seen nor officially heard from during the past several weeks and directing him to submit not later
than 4 March 1988 an official clarification on his whereabouts and accomplishments for the past
three weeks. 11

In his Reply of 9 March 1988 Agda reminded Teotico that his urgent petition to stop the
Implementation of Special Order No. 219 is still unresolved; consequently, its implementation
should be held in abeyance; and, as regards his whereabouts, he referred Teotico to the logbook
kept by the FIDA guard and certificates of appearance "attached from the respective offices
during the past three (3) weeks." 12

On 9 March 1988 FIDA Region I OIC, Mr. Seguritan, requested Teotico to require Agda to turn
over to him (Seguritan) the keys of the vault in FIDA Region I "for the safekeeping of our blank
cheeks, official receipts, approved checks but not yet issued to payee creditors, salaries and other
vital official documents of the Region"; 13 in a routing slip dated 11 March 1988, Teotico
referred the request to Agda with the note: "For immediate compliance pls. so as not to hamper
the conduct of our operations and service in Region I." 14

On 16 March 1988 Agda indorsed the above routing slip request to the Secretary of the
Department of Agriculture wherein he admits that he has the key of the safety vault, but
impliedly asserts that he will not yield it to anybody alleging that his petition to stop the
implementation of Special Order No. 219 and to nullify it is still unresolved and, besides, the
intended re-assignment is merely temporary; hence, it would be in keeping with substantial
justice if a status quo of things be maintained. He also asks that the urgent petition be resolved
and that meanwhile the directive to turn over the keys be held in abeyance. 15

On 23 March 1988 Teotico formally charged Agda for insubordination and conduct prejudical to
the best interest of the service for, among others, his failure to comply with the memorandum of
January 7, 1988 and with the routing slip request of 11 March 1988. 16

On 4 April 1988 Teotico placed Agda under preventive suspension pursuant to his Special Order
No. 74, to wit:

Pursuant to Section (sic) 41 and 42 of P.D. 807, Mr. Democrito Agda, Sr. is placed under
preventive suspension for the following reasons:

a) grave misconduct and gross insubordinationfor refusal to turn over the keys to the safe in
Region I. With the considerable amount of cash advances being handled in the region, Mr.
Agda's refusal to turn over said keys has become prejudicial to the best interests of the service;

b) neglect in the performance of dutyfor his refusal to report to the office of the Administrator
and his refusal to accept assignment claiming that it is a form of harassment since he still has a
pending unresolved petition; and

c) pending an investigation in some instances involving falsification of public documents and
instances of possible malversation of funds for services and maintenance and operating expenses
in Region I as per results of the recent FIDA Management Audit.

In this regard, the cashier is instructed to withhold the salary of Mr. Agda.

This order takes effect upon receipt of this memorandum and shall remain in force unless earlier
revoked or until the cases involving Mr. Agda are resolved. 17

On 8 April 1988 Agda asked Teotico for an extension of twenty days from 11 April 1988 within
which to submit his answer to the formal charge; 18 however, in his memorandum of 11 April
1988, Teotico granted him an extension of only five days from receipt thereof. 19 Also on 11
April, Teotico issued Special Order No. 26 reconstituting the Committee on Adjudication of
Cases FIDA-AC headed by Senior State Prosecutor Hipolita Ordinario of the Department of
Justice. 20

On 13 April 1988 counsel for Agda, Atty. Ramon Miranda, submitted a letter requesting for an
extension of fifteen days to file the answer. 21 In the letter of Senior State Prosecutor Ordinario
of 14 April 1988, Agda, through his counsel, was given until 21 April 1988 within which to file
the answer. 22

It likewise appears that on 13 April 1988 Agda sent a letter to the Commission on Elections 23
inquiring if Special Order No. 219, series of 1987, of Administrator Lanuza was referred and
submitted to it for approval three days before its implementation. In a letter dated 14 April 1988,
Atty. Horacio SJ Apostol, Manager of the Law Department of the Commission, informed private
respondent that "as of this date, records of the Department do not show that aforesaid Special
Order was submitted or referred to this Commission for approval." 24

On 18 April 1988 Agda filed with the court below in Civil Case No. 88-577 his Amended
Petition 25 for Certiorari, Prohibition and Injunction with preliminary injunction and restraining
order against Teotico and the three (3) members of the FIDA-AC alleging, in substance, that
Special Order No. 219 of 13 November 1987 issued by then Fida Administrator Lanuza is null
and void for having been issued in violation of Section 48 of P.D. No. 807 (Civil Service Decree)
which prohibits the detail or re-assignment of civil service personnel within three months before
an election and Section 261(h) of Batas Pambansa Blg 881 (The Omnibus Election Code) which
prohibits transfer or detail of officers and employees in the civil service within the election
period except upon prior approval of the Commission on Elections, and that all succeeding
orders or memoranda issued in connection with or by reason of such Special Order or in
implementation thereof are likewise null and void. The election referred to was the January 18,
1988 local election. He further alleges therein that he "is filing" with the COMELEC criminal
charges for violation of Sections 3, 261(h) and 264 of B. P. No. 881 against former
Administrator Lanuza and Teotico. He prays inter alia, that the court declare null and void and
set aside Special Order No. 219, Teotico's Memoranda of 7 January, 2 March, and 11 March,
1988, the Formal Charges of 23 March, the preventive suspension of 4 April, Special Order No.
86, the Memorandum of 11 April 1988, and Ordinario's letter of 14 April 1988, and the formal
investigation to be conducted on the charge against him.

On 18 April 1988 respondent Judge issued a restraining order directing respondents therein to
refrain from enforcing Annexes "E", "I", "M", "O", "R", "S", and "Z" of the amended petition
until further orders of the court and setting the hearing of the application for a writ of preliminary
injunction on 26 April
1988. 26

On 2 May 1988 Teotico and his co-respondents in the court below filed, through the office of the
Solicitor General, a motion to dismiss the case and opposition to the issuance of a writ of
preliminary injunction 27 alleging that the petition is premature for failure to exhaust
administrative remedies and patently lacks merit and is merely intended to derail the
administrative investigation against Agda. Movants set the hearing thereof on 5 May 1988.

On 4 May 1988 Agda filed an opposition to the motion to dismiss and memorandum in support
of his application for a writ of preliminary injunction. 28

On 11 May 1988 respondent Judge issued an Order granting the application for a writ of
preliminary injunction upon the filing of a bond of P50,000. 00 29 on the basis of the following
findings:

xxx xxx xxx

After careful consideration of the pleadings and their annexes filed by the parties, this Court
finds, to wit: the petitioner was appointed on June 16, 1984, as Chief, Fiber Industry
Development Authority by Cesar C. Lanuza, former Administrator of FIDA and was assigned in
Regions 1 and 2 with office at San Fernando, La Union; that on November 13, 1987, three
months before the local elections, which was held on January 18, 1987, the petitioner was
reassigned by former FIDA Administrator Lanuza to the FIDA main office and designated
Epitacio E. Lanuza, Jr. as officer-in-charge (OIC) of FIDA Region 1; that on December 15, 1987,
petitioner requested the Civil Service Commission (CSC) to stay the implementation of Special
Order No. 219; that on January 7, 1988, respondent Teotico implemented said Special Order 219,
despite the fact that petitioner requested the Civil Service Commission to stay implementation of
the said Special Order 219; that on January 12, 1988, petitioner requested the respondent Teotico
to defer the implementation of said Special Order No. 219; that on March 2, 1988, respondent
Teotico again implemented Special Order 219, requiring petitioner to submit his accomplishment
report; that on March 9, 1988, petitioner requested respondent Teotico to defer the
implementation of said special order, considering that the same has not yet been resolved by the
Secretary of Agriculture; that on December 11, 1987, former FIDA Administrator designated
Wilfredo G. Siguritan as officer-in-charge of FIDA Region 1; that on March 9, 1988, FIDA
Region 1 administrator Siguritan requested the petitioner through respondent Teotico to require
petitioner to turn over to him the keys of the vault in FIDA Region 1; that on March 14, 1988,
respondent Teotico implemented Special Order No. 219, requiring petitioner to turn over said
keys to OIC Seguritan; that on March 16, 1988, petitioner requested the Secretary of Agriculture
to defer the implementation of said special order pending resolution of said office; that on March
23, 1988, respondent Teotico implemented Special Order 219 by instituting administrative
charges against petitioner for insubordination prejudicial to the best interest of the service; that
on April 4, 1988, respondent Teotico placed the petitioner under preventive suspension, effective
April 6, 1988; that on April 8, 1988, petitioner requested respondent Teotico to give him twenty
(20) days from April 11, 1988, within which to submit his explanation to the formal
administrative charges.

xxx xxx xxx

After careful consideration of the allegations of the facts in this case, this Court believes that
petitioner was denied due process of law. The fact that petitioner informed respondent Teotico to
stay and/or defer the implementation of Special Order No. 219, considering that the same is still
pending before the Secretary of Agriculture, despite of which, respondents, more particularly,
Teotico, in grave abuse of discretion whimsical and capricious, tantamounting (sic) to the denial
of due process of law to the petitioner, implemented the same and aggravated by the fact that
respondents Teotico filed insubordination charges against the petitioner. This court believes, that
actuations of the respondents in railroading the request of the petitioner to stay the
implementation of Special Order No. 219 tantamounts to the denial of due process of law as
mandated by the new (C)onstitution, which falls under one of the principle of exhaustion of
administrative remedies. (New Filipino Maritime Agencies, Inc. vs. Rivera, L-5359-60, June 15,
1978) (De Lara, et al. vs. Cloribin, et al., G.R. No. L-21763, May 31, 1965).

It does not appear from the records that Agda presented evidence at a hearing on the application
for a writ of preliminary injunction. On the contrary, as reflected in the above-quoted order of
respondent Judge, the writ was issued on the basis of his "consideration of the pleadings and
their annexes filed by the parties."

On 17 May 1988, respondent Judge issued a Writ of Preliminary Preventive or Prohibitory
Injunction 30 restraining Teotico and his co-respondents from enforcing Annexes "E", "I", "K",
"M", "O", "R", "S", and "Z" of the amended petition.

On 2 June 1988 Teotico and his co-respondents below filed a motion, dated 31 May 1988, to
reconsider the 11 May Order alleging therein that the bases of the findings of denial of due
process are not supported by facts; they set the motion for hearing on 10 June 1988. 31

On 2 June 1988 Agda filed a motion to declare respondents below in contempt for refusing to
comply with the writ . 32 Then on 17 June 1988 he filed his opposition 33 to the motion for
reconsideration.

Teotico and his co-respondents filed on 17 June 1988 their opposition to the motion to declare
them in contempt of court. 34

The motion for contempt was ultimately denied in the Order of respondent Judge of 8 September
1988. 35

On September 23, 1988 Agda filed a motion to reconsider the 8 September Order. 36

In his Order of 16 December 1988, 37 respondent Judge held that Teotico and his co-respondents
cannot be held for contempt; however they were directed to comply with the Order of 11 May
1988 and Teotico was specifically ordered "to immediately reinstate the petitioner, Democrito O.
Agda, Sr., from (sic) his previous position as Fiber Regional Administrator, FIDA Region I, with
full back wages and allowances mandated by law."

On 22 December 1988 Teotico and his co-respondents filed a motion to reconsider the above 16
December 1988 Order stating therein that it would be premature for the court to order them to
comply with the 11 May Order before their motion for reconsideration is finally resolved and
they pray that the motion for reconsideration dated 2 June 1988 be resolved and that further
action on its 16 December Order be deferred until resolution of the motion. 38

On 29 December 1988 respondent Judge issued an Order 39 denying the motion for
reconsideration filed on 2 June and the motion of 22 December 1988 and directing Teotico to
comply with the Order of 16 December 1988 immediately upon receipt of said Order of 29
December.

On 5 January 1989 Teotico and his co-respondents filed a motion for
reconsideration/clarification, alleging, inter alia, that there is no basis for ordering Teotico to
reinstate Agda with full back wages and allowances since not even the Order of 11 May granting
the motion for preliminary injunction ordains the same. 40 But respondent Judge also denied this
motion in his Order of 14 February 1989. 41

Finding no other avenue of relief in the court below, petitioner filed this petition on 27 March
1989 submitting to Us the following grounds:

I

Respondent Judge acted with grave abuse of discretion when he ordered petitioner, allegedly in
compliance with the writ of injunction issued, to reinstate respondent Agda to his previous
position as Fiber Regional Administrator FIDA Region I with full backwages and allowances
notwithstanding that such act was not mandated or even mentioned in the prohibitory injunctive
writ.

II

Respondent Judge acted with grave abuse of discretion when he refused to dismiss respondent's
petition in Civil Case No. 88-577 despite his finding that respondent has already availed of an
administrative remedy which is pending resolution by the Civil Service Commission.

III

Respondent Judge acted with grave abuse of discretion when he issued a writ of preliminary
injunction dated May 11, 1988 without hearing on the merits.

In compliance with Our resolution of 12 April 1989, herein respondents filed their Comment on
2 May 1989.

As We stated in the introductory portion of this Decision, in the resolution of 29 May 1989 We
gave due course to the petition and required the parties to submit their Memoranda, which they
complied with.

The petition is impressed with merit.

Respondent Judge clearly acted with grave abuse of discretion in taking cognizance of Civil Case
No. 88-577, in deliberately failing to act on the motion to dismiss, in issuing a writ of
preliminary injunction, and in ordering the "reinstatement" of Agda, "as Fiber Regional
Administrator, FIDA Region I, with full back wages and allowances mandated by law."

Agda was not appointed as Fiber Regional Administrator, FIDA Region I, but as CHIEF FIBER
DEVELOPMENT OFFICER; he was not appointed to any specific station. 42 He was merely
designated as Acting Regional Administrator For FIDA Regions I and II. 43

Not having been appointed to any specific station, he could be tranferred or assigned to any other
place by the head of office where in the opinion of the latter his services may be utilized more
effectively. 44

In Ibaez vs. COMELEC, 45 ., We held:

Assayed upon the foregoing legal crucible the petitioner's case suffers an initial set back. The
appointments upon which they respectively anchor their claim state that they were merely
appointed as "Election Registrars in the Commission on Elections. . . . ." Therefore, there can be
no gainsaying the fact that the petitioners were not appointed to, and consequently, not entitled to
any security of tenure or permanence in, any specific station. On the general principle, they may
be transferred as the exigencies of the service require. They ordinarily have no right to complain
against any change of assignment. 46

In the latest case of Department of Education, Culture and Sports, et al. vs. The Honorable Court
of Appeals, et al., 183 SCRA 555, 562, We held:

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 vs. Parado, 57 SCRA 623). When she was assigned to the Carlos
Albert High School, it would 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 her consent.

Moreover, it should be borne in mind that Special Order No. 29 of 2 January 1984 merely
designated Agda as Acting Regional Administrator for Regions I and II. Such being the case, the
rule enunciated in Cuadra vs. Cordova etc., 103 Phil. 391, on temporary appointments or
appointments in an acting capacity that they are terminable at the pleasure of the appointing
authority, is applicable to Agda. He can neither claim a vested right to the station to which he
was assigned nor to security of tenure thereat.

Accordingly, private respondent could be re-assigned to any place and Special Order No. 219
dated 13 November 1987 reassigning private respondent at the Office of the Administrator of the
FIDA "in the interest of the service" was in order. Although denominated as "reassignment", it
was in fact a mere detail in that office.

The Civil Service Decree, P.D. No. 807, allows transfer, detail and re-assignment. 47 If the
employee concerned believes that there is no justification therefore, he "may appeal his case to"
the Civil Service Commission. Unless otherwise ordered by the Commission, the decision to
detail an employee shall be executory. Agda invoked the appellate jurisdiction of the
Commission when he filed his Urgent Petition To Stay Implementation and Nullify the Special
Order in question with the Civil Service Commission. 48 It does not, however, appear to Us that
he exerted genuine and sincere efforts to obtain an expeditious resolution thereof What appears
to be clear is that he used its pendency as an excuse for his refusal to comply with the
memorandum of Teotico of 7 January 1988 and the routing slip request of 11 March 1988 for the
key to the safety vault.

We are not persuaded by Agda's claim that the questioned detail was done in violation of Section
261(h) of Batas Pambansa Blg. 881 (Omnibus Election Code) Considering that (a) he raised this
matter for the first time only in his Amended Petition, or five (5) months after the issuance of the
Special Order. No evidence has been presented, or at least strongly and convincingly suggested,
to prove or show that no prior approval was obtained by Administrator Lanuza from the
COMELEC for such detail, or that a case for violation of Section 261(h) was in fact filed against
Lanuza or Teotico. All that Agda can show are his alleged letter to the COMELEC to inquire if
Special Order No. 219 had been referred to it and an alleged answer dated 14 April 1988 of Atty.
Horacio SJ Apostol, Manager of the Law Department of the Commission, to the effect that the
records of the Department do not show, as of that date, that the Special Order was submitted or
referred to the Commission. The latter is not conclusive proof that no prior authority was in fact
obtained by Administrator Lanuza for the reassignment or detail of Agda. No law requires the
submission. to the COMELEC of special orders reassigning or detailing employees within the
prohibited period. What is needed is "prior authority," the request for which and its approval may
be in separate documents or papers.

Moreover, although Agda alleges in his amended petition that:

11.20. Petitioner is filing criminal charges for violations of Secs. 3, 261(h) and 264 of B.P. 881
against former FIDA Administrator Lanuza and respondent Teotico in the COMELEC."
(Emphasis supplied)

none of his subsequent pleadings both before the lower court and before Us disclose that he had
in fact filed such charges. Obviously, said allegation was a clever attempt to show a semblance
of a valid grievance.

Furthermore, even in the cases of transfer or detail within the probihited period prior to an
election, an aggrieved party is provided an appropriate administrative remedy. Section 6 of Rule
VI of the Civil Service Rules on Personnel Actions and Policies provides:

Sec. 6. Except when the exigencies of the service require, an official or employee of the
government may not be ordered detailed or reassigned during the three-month period before any
local or national election, and if he believes that the order for his detail or reassignment is due to
harassment, coercion, intimidation, or other personal reasons, he may appeal the order to the
Commission. Until this is proven, however, the order is presumed to be in the interest of the
service and notwithstanding the appeal, the decision to detail or reassign him shall be executory,
but the Commission may order deferment of suspension of the detail or reassignment ex parte."

Agda made no attempt to avail of this remedy. In his Urgent Petition to Stay Implementation and
Nullify Special Order No. 219, nothing is mentioned about a violation of the ban on transfer or
detail. The reason seems too obvious. Until he filed the Amended Petition before the court below
he did not consider his re-assignment per Special Order No. 219 as a violation of the ban on
transfer or detail during the three-month period before the election.

Not having yet fully exhausted the existing adequate administrative remedy which he already
took advantage of, Agda cannot be permitted to abandon it at his chosen time and leisure and
invoke the jurisdiction of regular courts. As aptly summarized:

Within the administrative forum the law may provide for review of decisions by higher
authorities. Before a party can be allowed to invoke the jurisdiction of the courts of justice, he is
expected to have exhausted all means of administrative redress afforded him. There are both
legal and practical reasons for this. The administrative process is intended to provide less
expensive and more speedy solutions to disputes. Where the enabling statute indicates a
procedure for administrative review, and provides a system of administrative appeal, or
reconsideration, the courts for reasons of law, comity and convenience, will not entertain a case
unless the available administrative remedies have been resorted to and the appropriate authorities
have been given opporturity to act and correct the errors committed in the administrative forum.
49

The doctrine of exhaustion of administrative remedies is well-entrenched in this jurisdiction and
a host of cases has buttressed its stability. 50 There are, of course, recognized exceptions thereto,
but, unfortunately, private respondent cannot seek safe refuge under their protective mantle, for
in respect to the remedy provided for in Section 24(c) of P.D. No. 807, which is also the remedy
provided for in Section 24(f), availment thereof is indispensable for the viability of any judicial
action. As we held in Department of Education, Culture and Sports, et al. vs. The Honorable
Court of Appeals, et al., supra:

Finally, respondent Navarro has not exhausted administrative remedies as she did not elevate the
matter of her transfer to the Civil Service Commission in accordance with Section 24(c), P.D. No.
807, otherwise known as the Civil Service Decree, which provides:

xxx xxx xxx

By not appealing her case to the Civil Service Commission before filing Special Civil Action No
Q-37025, respondent Navarro is indubitably without cause of action.

Respondent Judge, as clearly shown in his Order of 11 May 1988, was fully aware of Agda's
urgent petition before the Civil Service Commission to suspend its implementation of Special
Order No. 219 and to nullify the same. He had, therefore, no other business to do except to grant
the motion to dismiss. He should have, forthwith, stayed his hands until the administrative
processes had been completed. 51 Yet, for reasons only known to him, which We cannot divine
at, he did not do so. On the contrary, he granted the application for a writ of preliminary
injunction and issued the writ on 17 May 1988.

The writ was improvidently and capriciously issued. The issuance of the writ, although
addressed to the sound discretion of the court, is conditioned on the existence of a clear and
positive right which should be protected. 52 Considering that the amended petition should have
been dismissed outright because Agda prematurely invoked the jurisdiction of the court in view
of his appeal to the Civil Service Commission, it follows that, even if he had a right, no
protection was available from the court below. But even if We disregard for the moment the
above weakness of the amended petition and consider, as the respondent Judge did, "the
pleadings and their annexes," the inescapable action that should follow would be denial of the
application for the issuance of the writ. The pleadings and the annexes do not at all demonstrate a
clear and positive right for Agda, for as discussed above, by the very nature of his appointment
he had no security of tenure in the station to where he was assigned on 2 January 1984; besides,
his designation as acting Regional Administrator for FIDA Regions I and II was terminable at
any time at the pleasure of the head of office. Moreover, as could be gleaned from the annexes of
the Amended Petition, Agda impliedly accepted his re-assignment to the Control Office of FIDA
To Teotico's Memorandum of January 1988 addressed to Agda as "Regional Administrator"
which required him to submit his development programs for Region I (1988-1993) and his
proposals for sericulture and the maguey industry in said Region, Agda, in his indorsement of 12
January 1-988 claims and admits that "this representation was reassigned to FIDA Central Office
where he now reports up to the present" and that "Mr. Wilfredo Seguritan . . . remains up to the
present as the OIC of FIDA for the said Region." In this indorsement Agda wrote below his
signature the following: (Detailed to Central Office). To Teotico's Memorandum of 2 March
1988 requiring him to submit an official clarification on his whereabouts and his
accomplishments for the past three weeks since he had not been seen or officially heard from,
Agda referred the former to the record (log book) kept by the FIDA Guard and certificates of
appearance. Clearly then, as of the filing of the Amended Petition, Special Order No. 219 was a
fait accompli. Acts already consummated cannot be enjoined by preliminary injunction. 53

The respondent Judge did not stop there. As complained by Teotico, on 16 December 1988 the
former issued an Order wherein although he denied the motion for the reconsideration of his 8
September 1988 Order denying the motion for contempt, he ordered Teotico to immediately
reinstate Agda "from (sic) his previous position as Fiber Regional Administrator, FIDA Region I,
with full back wages and allowances mandated by law." This, in effect, amounted to a mandatory
injunction, issued without a hearing and in violation of Section 5 of Rule 58 of the Rules of
Court. There was no basis for its issuance. A mandatory injunction may only be issued upon a
showing that the invasion of the right is material and substantial; the right of complainant is clear
and unmistakable; and there is an urgent and permanent necessity for the writ to prevent serious
damage. 54 They have not been shown to exist in this case.

Even if the 16 December reinstatement order should be construed to be directed against the
preventive suspension order issued by Teotico on 4 April 1988, respondent Judge clearly
capriciously breached the limits of his discretion for nowhere in his amended petition has Agda
attacked its validity or legality on any other ground than its being issued to implement Special
Order No. 219, 55 which he claims was issued in violation of the pertinent provisions of the
Omnibus Election Code and the Civil Service Decree prohibiting transfer or reassignment of
civil service officials and employees within three months before the local election of January 18,
1988. He assailed the suspension order not on the ground that Teotico does not have the
authority to file the formal charge and to preventively suspend him, but solely on the basis of his
self-serving claim that both were issued without or in excess of jurisdiction or with grave abuse
of discretion because they were meant to implement Special Order No. 219.

Preventive suspension is allowed under Section 41 of P.D. No. 807 which reads:

Sec. 41. Preventive Suspension. The proper disciplining authority may preventively suspend
any subordinate officer or employee under his authority pending an investigation, if the charge
against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect
in the performance of duty, or if there are reasons to believe that the respondent is guilty of
charges which would warrant his removal from the service.

However, per Section 42 of the same decree, if the administrative cases against the suspended
officer or employee, who is not a Presidential appointee, is not finally decided by the disciplining
authority within ninety days after date of suspension, he shall be automatically reinstated in the
service provided that when the delay in the disposition of the case is due to the fault, negligence
or petition of the respondent, the period of delay shall not be counted in computing the period of
suspension.

In the instant case, by Agda's own act and the cooperation of respondent Judge, the
administrative case against the former is not yet even ready for hearing. He has not filed his
Answer, although he was given until 21 April 1988 within which to do so.

Lastly, We hold that both the preliminary injunction and the reinstatement order issued by
respondent Judge practically granted the main relief prayed for by Agda even before the hearing
on the case on the merits. In Obias, et al., vs. Hon. Borja, et al., 136 SCRA 687, We ruled that
respondent judge acted with grave abuse of discretion in issuing a writ of preliminary injunction
which in effect practically granted the principal relief sought in the Mandamus case. The reason
for this is that such issuance "would, in effect, be a prejudgment of the main case and a reversal
of the rule on the burden of proof since it would assume the proposition which the petitioner is
inceptively bound to prove. 56

The foregoing conclusions render unnecessary a discussion on other matters raised in this case.

WHEREFORE, the Petition is GRANTED. The Orders of respondent Judge of 11 May 1988, 16
December 1988, 29 December 1988 and 14 February 1989 and the Writ of Injunction issued on
17 May 1987 in Civil Case No. 88-577 entitled Democrito D. Agda, Sr., vs. Joaquin M. Teotico,
et al., are SET ASIDE and said Civil Case is hereby ordered DISMISSED. With costs against
private respondent.

SO ORDERED.

REINSTATEMENT
GLORIA V. JUDGE SALVADOR DE GUZMAN
G.R. No. 116183 October 6, 1995

SEC. RICARDO T. GLORIA, in his capacity as Secretary of Education, Culture & Sports and
Chairman of the Board of Trustees of the Philippine State College of Aeronautics (PSCA);
JULIAN J. LOLENG, JR., in his capacity as Officer-in-Charge of PSCA; and BOARD OF
TRUSTEES of PSCA, petitioners,
vs.
HON. SALVADOR P. DE GUZMAN, JR., Presiding Judge of Branch 113, Regional Trial Court
of Pasay, Metro Manila; VIRGILIO R. RAMOS, LEONY P. SENDIN, ROSARIO V. CERILLO,
ANDREA A. PESTANO, ARTHUR V. RODRIGUEZA, LENI V. DIMAYUGA, JAIME
ABON, RIZALDO O. VALLE, JOIE ARCEO, SHIRLEY PESTANO, SERVANDO SACUEZA,
JAIME C. PONEGAL, EDGARDO MERCADO, CRISTINA BULADO, BENIGNO T.
AQUINO, RODEL PESTANO, JUN JAY PARMA, NILO B. ELLO, and NELSON SACUEZA,
respondents.



HERMOSISIMA, JR., J.:

Intransigence of private respondents in maintaining a patently indefensible position sparked this
long drawn out controversy. Knowing fully well that, as temporary employees whose terms of
office, whether by contract or by the tenor of their appointments, had expired one year after their
respective temporary appointments, that is, on December 31, 1992, they insist on a perceived,
albeit mistaken, right to reinstatement.

Before this Court is a Petition for Certiorari, filed by Hon. Ricardo T. Gloria, in his capacity as
Secretary of Education, Culture and Sports (DECS) and as Chairman of the Board of Trustees of
the Philippine State College of Aeronautics (PSCA); Col. Julian J. Loleng, Jr., in his capacity as
Officer-in-Charge of the PSCA; and the Board of Trustees of the PSCA 1, under Rule 65 of the
Revised Rules of Court, with the end in view of nullifying the Decision 2 and Order 3 of
respondent Judge Salvador P. de Guzman, Jr., Presiding Judge of Branch 113, Regional Trial
Court of Pasay City, dated January 31, 1994 and June 29, 1994, respectively.

Questioned in effect by the petitioners is only the portion of the judgment ordering the
reinstatement of private respondent Rosario V. Cerillo to the position of "Coordinator for
Extension Services".

Actually, the act of effecting the termination of the appointment of Rosario V. Cerillo was
perpetrated by Col. Julian J. Loleng, Jr. while it was the Hon. Isidro Cario who was the DECS
Secretary. The case for reinstatement which was filed before respondent Judge Salvador P. de
Guzman, Jr. of the Pasay City Regional Trial Court was instituted during the incumbency of the
succeeding DECS Secretary, the Hon. Armand Fabella. The judgment of the lower court, as a
matter of fact, involved the Hon. Armand Fabella as defendant. In view of the resignation of
Secretary Fabella, the duty and obligation to question the decision aforesaid of Judge Salvador P.
de Guzman, Jr. devolved on the incumbent Secretary, the Hon. Ricardo T. Gloria.

Consequently, the dramatis personae in this case include: DECS Secretary Ricardo T. Gloria;
PSCA Board of Trustees Chairman Col. Julian J. Loleng, Jr.; and the PSCA Board of Trustees
created under Republic Act
No. 7605, as petitioners; and RTC Executive Judge Salvador P. de Guzman, Jr., as public
respondent, and the named private respondents who were the petitioners in the court below.

The facts of the case are not in dispute. The question at issue is one of law: Is private respondent
Rosario V. Cerillo entitled to reinstatement to the position of "Coordinator for Extension
Services"?

Private respondents were employees of the Philippine Air Force College of Aeronautics (PAFCA)
which was created by virtue of Presidential Decree No. 1078 on January 26, 1977. Under the
said decree, the Board of Trustees is vested with authority, among others, to appoint, as it did
appoint, officials and employees of the college, except the members of the Board of Trustees
themselves and the President of the college. In line with this authority, the PAFCA Board of
Trustees issued Resolution No. 91-026 on April 1, 1991, which declared that "All
faculty/administrative employees are also subject to the required civil service eligibilities", in
accordance with pertinent civil service law, rules and regulations. Thus, herein private
respondents were issued only temporary appointments because at the time of their appointment,
they lacked appropriate civil service eligibilities or otherwise failed to meet the necessary
qualification standards for their respective positions.

Private respondent Rosario V. Cerillo, specifically, was issued a one-year temporary
appointment to the position of Board Secretary II of PAFCA (now PSCA), that is, from January
1, 1992 to December 31, 1992. This appointment went along the line enunciated by the Civil
Service Commission in a letter, dated March 25, 1992. 4 The letter emphasized that temporary
appointments were good and renewable only up to 1992.

On March 24, 1992, private respondent Rosario V. Cerillo was
relieved as Board Secretary of the PAFCA in accordance with Board Resolution No. 92-017 by
reason of loss of confidence. Subsequently, however, she was designated as "Coordinator for
Extension Services".

On June 3, 1992, Republic Act No. 7605 was enacted into law. It converted PAFCA into a state
college to be known as the Philippine State College of Aeronautics (PSCA). The Board of
Trustees likewise was the governing body of the PSCA. The power to make appointments was
retained by the Board. Petitioner Col. Julian J. Loleng, Jr. remained as Officer-in-Charge by
virtue of a designation made anew by then DECS Secretary Isidro Cario on June 8, 1992.

Only on December 7, 1992 did Col. Loleng inform private respondents that they shall be deemed
separated from the service upon the expiration of their temporary appointments. Had private
respondent Rosario V. Cerillo not been summarily dismissed as Board Secretary on March 24,
1992, her temporary appointment as such was supposed to have lasted until December 31, 1992.

On June 25, 1993, barely five months after the lapse of the terms of their temporary
appointments as determined by the PSCA administration, the herein private respondents filed
before the Regional Trial Court of Pasay City, presided over by respondent Judge Salvador P. de
Guzman, Jr., a "Petition for Mandamus and Reinstatement, with Back Wages and Damages",
docketed as Civil Case No. 10049. The complaint in effect prayed that then DECS Secretary
Armand Fabella complete the filling up of positions for Board of Trustees and order the Board of
Trustees to reinstate the respondents in the case at bench to their respective positions.

In their Answer, 5 the herein petitioners opposed the petition upon the ground that mandamus
will not lie to compel reinstatement because the reappointment prayed for is discretionary on the
part of the appointing power. Besides, it was the claim of Secretary Fabella that a writ of
mandamus should be unavailing to private respondents because of their failure to exhaust
administrative remedies.

We find the petition to be impressed with merit.

I

The judgment of respondent Judge Salvador P. de Guzman, Jr. which orders the reinstatement of
Ms. Rosario V. Cerillo to the position of "Coordinator for Extension Services" is patently
improper because it finds no support as to facts and the law. Respondent Cerillo, although
temporarily extended an appointment as Board Secretary II, was dismissed therefrom because of
loss of confidence. This dismissal was neither contested nor appealed from by Ms. Cerillo. There
is no question, therefore, that her dismissal as Board Secretary II could not have been the subject
of the petition for mandamus and reinstatement filed before respondent Judge. The fact is that
private respondent's assignment as "Coordinator for Extension Services" was a mere designation.
Not being a permanent appointment, the designation to the position cannot be the subject of a
case for reinstatement.

Furthermore, even granting that Ms. Cerillo could be validly reinstated as "Coordinator for
Extension Services", her reinstatement thereto would not be possible because the position is not
provided for in the PSCA plantilla. The PSCA could not have made any valid appointment for
this inexistent position. This could very well be the reason why she was merely designated as
Coordinator. As a mere designee, she could not have acquired any right to the position even if
the position existed.

At any rate, a mere "designation" does not confer upon the designee security of tenure in the
position or office which he occupies in an acting capacity only 6.

II

Should the object of private respondent Cerillo in prosecuting the case in the court below be her
reinstatement to the position of Board Secretary II, the reinstatement prayed for appears to be
impermissible. In the first place,
Ms. Cerillo had already been dismissed from this position for loss of confidence. She did not
contest this dismissal possibly because the position of Board Secretary II is primarily
confidential and the Board of Trustees, when finding her, the incumbent to the position, to be
wanting in faithfulness and integrity dismissed her for that reason alone. She accepted the
dismissal without any ripple and when designated as Coordinator for Extension Services, she
indicated acceptance by performing the acts called for by the designation.

The quarrel between the private respondents, on the one hand, and the PSCA administration, on
the other, came about in this manner:

The Civil Service Commission, mandating a policy, wrote petitioner
Col. Julian J. Loleng, Jr. a letter 7 mandating that temporary appointments of officers/employees
of the PSCA were to last only up to December 31, 1992. For a better perspective, We quote a
pertinent portion of the letter:

xxx xxx xxx

Please note that temporary appointments last only for a maximum of one (1) year and all
personnel appointed in a temporary capacity can be replaced any time by a civil service eligible.
Since you have just been recently covered by the Civil Service Law and rules, this Field Office
approved all your temporary appointments subject to yearly renewal up to 1992 only. Subsequent
appointments should strictly conform with civil service policies. You may, therefore, advise all
your temporary personnel to take civil service examinations in order to be eligible for
appointment.

This letter was implemented by Col. Julian J. Loleng, Jr. Objecting thereto, private respondents
pointed out to the PSCA administration that, in Resolution No. 91-026, dated April 1, 1991, the
Board of Trustees declared that all faculty/administrative employees of the college, while
required to acquire civil service eligibilities under pertinent civil service law, rules and
regulations, must exert effort to acquire civil service eligibilities within a period of three years
from their temporary appointments. This, the private respondents believe should be taken to
mean that, should they acquire civil service eligibilities within that period of three years, they
cannot be terminated from the service.

The fact that private respondent Cerillo passed the requisite Civil Service Examination after the
termination of her temporary appointment is no reason to compel petitioners to reappoint her.
Acquisition of civil service eligibility is not the sole factor for reappointment. Still to be
considered by the appointing authority are: performance, degree of education, work experience,
training, seniority, and, more importantly, as in this case, whether or not the applicant enjoys the
confidence and trust of the appointing power. As We said earlier, the position of Board Secretary
II, by its nature, is primarily confidential, requiring as it does "not only confidence in the aptitude
of the appointee for the duties of the office but primarily close intimacy which ensures freedom
from misgivings of betrayals of personal trust or confidential matters of state." 8 In other words,
the choice of an appointee from among those who possessed the required qualifications is a
political and administrative decision calling for considerations of wisdom, convenience, utility
and the interests of the service which can best be made by the Head of the office concerned. 9

It cannot be overemphasized that the PSCA Board Resolution No. 91-026 must yield to the Civil
Service Commission policies on the issuance of temporary appointments. When the Civil Service
Commission directed that temporary appointments were to be effective only up to 1992, it did so
in pursuance of the general purpose of the civil service law, as stated under Section 2 of Republic
Act No. 2260, as amended, which is "to ensure and promote the constitutional mandate regarding
appointments only according to merit and fitness and to provide within the public service a
progressive system of personal administration to ensure the maintenance of an honest and
efficient progressive and courteous civil service in the Philippines. 10 For that matter, it is vested
with the function, among others, to promulgate policies, standards and guidelines for the civil
service and adopt plans and programs to promote economical, efficient and effective personnel
administration in the government. 11

We hold that reappointment to the position of Board Secretary II is an act which is discretionary
on the part of the appointing power. Consequently, it cannot be the subject of an application for a
writ of mandamus.

Reinstatement is technically issuance of a new appointment which is essentially discretionary, to
be performed by the officer in which it is vested according to his best lights, the only condition
being that the appointee should possess the qualifications required by law. 12 Such exercise of
the discretionary power of appointment cannot be controlled, not even by the Court as long as it
is exercised properly by the appointing authority. 13

It is Our holding that the questioned order of reinstatement amounts to an undue interference by
the Court in the exercise of the discretionary power of appointment vested in the PSCA Board of
Trustees.

Surprisingly, the Court a quo, while upholding the right of private respondent Cerillo to a
reappointment, adhered to this pontification by stating that:

The appointment of the petitioners to their former positions is not a matter of right; rather, it is a
matter of discretion on the part of the respondents. Mandamus cannot be availed of to compel
anyone to exercise his discretion absent any showing of grave abuse of discretion.

III

The termination of the services of private respondents was proper and legal, it being the
consequence of the Board of Trustees' power to appoint. The view of respondent Judge, however,
is that there was no termination ordered. Either the employees' contracts lapsed or their
temporary appointments were abrogated by circulars from the Civil Service Commission. This,
as a necessary consequence of the transition from the Philippine Air Force College of
Aeronautics (PAFCA) to the Philippine State College of Aeronautics (PSCA).

We agree with respondent Judge's disquisition on this point:

To the question was the termination of the services of the petitioners legal or not?, the only
answer is there was not termination to speak of. Termination presupposes an overt act committed
by a superior officer. There was none whatsoever in the case at bar. At most, Col. Julian (Loleng)
gave notice to the petitioners of the expiration of their respective contracts, Petitioners
appointment or employment simply expired either by its very own terms, or because it may not
exceed one year, but most importantly because the PAFCA was dissolved and replaced by the
PSCA. The notice given by Col. Loleng to the petitioners seem to have been misunderstood by
them as an act of dismissal which as they correctly state, belongs to the Board of Trustees alone.

IV

Considering Our finding that there is merit to the petition, the issue as to whether attorney's fees
and costs of litigation should be awarded to private respondent Rosario V. Cerillo as adjudged in
the questioned decision of respondent Judge has become moot and academic. At any rate, the
Court holds that the said award could not have been imposed because, while it was directly
ordered in the dispositive portion of the decision, it was neither discussed nor justified in the
body of the questioned decision. Clear on this point is Our decision in Policarpio vs. Court of
Appeals, 194 SCRA 129, 742, [1991]: "The Court had occasion to state that the reason for the
award of attorney's fees must be stated in the text of the decision, otherwise, if it is stated only in
the dispositive portion of the decision, the same shall be disallowed." This ruling We reiterated
in the case of Koa vs. Court of Appeals, 219 SCRA 541, 549, [1991], citing Central Azucarcra
de Bais vs. Court of Appeals, 188 SCRA 328, 340, where it was stated that "The award of
attorney's fees must be disallowed for want of factual and legal premise in the text of the
decision rendered by the court of origin and the appellate court as well."

WHEREFORE, the petition is GRANTED. The challenged decision, dated January 31, 1994,
insofar as it ordered the reinstatement of
Ms. Rosario V. Cerillo and the payment to the latter of back wages and attorney's fees, and the
Order, dated June 29, 1994, of respondent
Judge Salvador P. de Guzman, Jr. are hereby declared null and void and ordered set aside. The
temporary restraining order/preliminary injunction heretofore issued is hereby made permanent.

SO ORDERED.

EFFECT OF PARDON
MONSANTO VS FACTORAN
G.R. No. 78239 February 9, 1989

SALVACION A. MONSANTO, petitioner,
vs.
FULGENCIO S. FACTORAN, JR., respondent.



FERNAN, C.J.:

The principal question raised in this petition for review is whether or not a public officer, who
has been granted an absolute pardon by the Chief Executive, is entitled to reinstatement to her
former position without need of a new appointment.

In a decision rendered on March 25, 1983, the Sandiganbayan convicted petitioner Salvacion A.
Monsanto (then assistant treasurer of Calbayog City) and three other accused, of the complex
crime of estafa thru falsification of public documents and sentenced them to imprisonment of
four (4) years, two (2) months and one (1) day of prision correccional as minimum, to ten (10)
years and one (1) day of prision mayor as maximum, and to pay a fine of P3,500. They were
further ordered to jointly and severally indemnify the government in the sum of P4,892.50
representing the balance of the amount defrauded and to pay the costs proportionately.

Petitioner Monsanto appealed her conviction to this Court which subsequently affirmed the same.
She then filed a motion for reconsideration but while said motion was pending, she was extended
on December 17, 1984 by then President Marcos absolute pardon which she accepted on
December 21, 1984.

By reason of said pardon, petitioner wrote the Calbayog City treasurer requesting that she be
restored to her former post as assistant city treasurer since the same was still vacant.

Petitioner's letter-request was referred to the Ministry of Finance for resolution in view of the
provision of the Local Government Code transferring the power of appointment of treasurers
from the city governments to the said Ministry. In its 4th Indorsement dated March 1, 1985, the
Finance Ministry ruled that petitioner may be reinstated to her position without the necessity of a
new appointment not earlier than the date she was extended the absolute pardon. It also directed
the city treasurer to see to it that the amount of P4,892.50 which the Sandiganbayan had required
to be indemnified in favor of the government as well as the costs of the litigation, be satisfied. 1

Seeking reconsideration of the foregoing ruling, petitioner wrote the Ministry on April 17, 1985
stressing that the full pardon bestowed on her has wiped out the crime which implies that her
service in the government has never been interrupted and therefore the date of her reinstatement
should correspond to the date of her preventive suspension which is August 1, 1982; that she is
entitled to backpay for the entire period of her suspension; and that she should not be required to
pay the proportionate share of the amount of P4,892.50. 2

The Ministry of Finance, however, referred petitioner's letter to the Office of the President for
further review and action. On April 15, 1986, said Office, through Deputy Executive Secretary
Fulgenio S. Factoran, Jr. held:

We disagree with both the Ministry of Finance and the petitioner because, as borne out by the
records, petitioner was convicted of the crime for which she was accused. In line with the
government's crusade to restore absolute honesty in public service, this Office adopts, as a
juridical guide (Miranda v. Imperial, 77 Phil. 1966), the Resolution of the Sandiganbayan, 2nd
Division, in People v. Lising, Crim. Case No. 6675, October 4, 1985, that acquittal, not absolute
pardon, of a former public officer is the only ground for reinstatement to his former position and
entitlement to payment of his salaries, benefits and emoluments due to him during the period of
his suspension pendente lite.

In fact, in such a situation, the former public official must secure a reappointment before he can
reassume his former position. ...

Anent the civil liability of Monsanto, the Revised Penal Code expressly provides that "a pardon
shall in no case exempt the culprit from payment of the civil indemnity imposed upon him by the
sentence." (Sec. 36, par. 2).

IN VIEW OF THE FOREGOING, this Office holds that Salvacion A. Monsanto is not entitled to
an automatic reinstatement on the basis of the absolute pardon granted her but must secure an
appointment to her former position and that, notwithstanding said absolute pardon, she is liable
for the civil liability concomitant to her previous conviction. 3

Her subsequent motion for reconsideration having been denied, petitioner filed the present
petition in her behalf We gave due course on October 13, 1987.

Petitioner's basic theory is that the general rules on pardon cannot apply to her case by reason of
the fact that she was extended executive clemency while her conviction was still pending appeal
in this Court. There having been no final judgment of conviction, her employment therefore as
assistant city treasurer could not be said to have been terminated or forfeited. In other words,
without that final judgment of conviction, the accessory penalty of forfeiture of office did not
attach and the status of her employment remained "suspended." More importantly, when pardon
was issued before the final verdict of guilt, it was an acquittal because there was no offense to
speak of. In effect, the President has declared her not guilty of the crime charged and has
accordingly dismissed the same. 4

It is well to remember that petitioner had been convicted of the complex crime of estafa thru
falsification of public documents and sentenced to imprisonment of four years, two months and
one day of prision correccional as minimum, to ten years and one day of prision mayor as
maximum. The penalty of prision mayor carries the accessory penalties of temporary absolute
disqualification and perpetual special disqualification from the right of suffrage, enforceable
during the term of the principal penalty. 5 Temporary absolute disqualification bars the convict
from public office or employment, such disqualification to last during the term of the sentence. 6
Even if the offender be pardoned, as to the principal penalty, the accessory penalties remain
unless the same have been expressly remitted by the pardon. 7 The penalty of prision
correccional carries, as one of its accessory penalties, suspension from public office. 8

The propositions earlier advanced by petitioner reveal her inadequate understanding of the nature
of pardon and its legal consequences. This is not totally unexpected considering that the
authorities on the subject have not been wholly consistent particularly in describing the effects of
pardon.

The benign mercy of pardon is of British origin, conceived to temper the gravity of the King's
wrath. But Philippine jurisprudence on the subject has been largely influenced by American case
law.

Pardon is defined as "an act of grace, proceeding from the power entrusted with the execution of
the laws, which exempts the individual, on whom it is bestowed, from the punishment the law
inflicts for a crime he has committed. It is the private, though official act of the executive
magistrate, delivered to the individual for whose benefit it is intended, and not communicated
officially to the Court. ... A pardon is a deed, to the validity of which delivery is essential, and
delivery is not complete without acceptance." 8-a

At the time the antecedents of the present case took place, the pardoning power was governed by
the 1973 Constitution as amended in the April 7, 1981 plebiscite. The pertinent provision reads:

The President may, except in cases of impeachment, grant reprieves, commutations and pardons,
remit fines and forfeitures, and with the concurrence of the Batasang Pambansa, grant amnesty. 9

The 1981 amendments had deleted the earlier rule that clemency could be extended only upon
final conviction, implying that clemency could be given even before conviction. Thus,
petitioner's unconditional pardon was granted even as her appeal was pending in the High Court.
It is worth mentioning that under the 1987 Constitution, the former limitation of final conviction
was restored. But be that as it may, it is our view that in the present case, it is not material when
the pardon was bestowed, whether before or after conviction, for the result would still be the
same. Having accepted the pardon, petitioner is deemed to have abandoned her appeal and her
unreversed conviction by the Sandiganbayan assumed the character of finality.

Having disposed of that preliminary point, we proceed to discuss the effects of a full and
absolute pardon in relation to the decisive question of whether or not the plenary pardon had the
effect of removing the disqualifications prescribed by the Revised Penal Code.

In Pelobello v. Palatino, 10 We find a reiteration of the stand consistently adopted by the courts
on the various consequences of pardon: "... we adopt the broad view expressed in Cristobal v.
Labrador, G.R. No. 47941, December 7, 1940, that subject to the limitations imposed by the
Constitution, the pardoning power cannot be restricted or controlled by legislative action; that an
absolute pardon not only blots out the crime committed but removes all disabilities resulting
from the conviction. ... (W)e are of the opinion that the better view in the light of the
constitutional grant in this jurisdiction is not to unnecessarily restrict or impair the power of the
Chief Executive who, after an inquiry into the environmental facts, should be at liberty to atone
the rigidity of the law to the extent of relieving completely the party ... concerned from the
accessory and resultant disabilities of criminal conviction.

The Pelobello v. Palatino and Cristobal v. Labrador cases, 11 and several others 12 show the
unmistakable application of the doctrinal case of Ex Parte Garland, 13 whose sweeping
generalizations to this day continue to hold sway in our jurisprudence despite the fact that much
of its relevance has been downplayed by later American decisions.

Consider the following broad statements:

A pardon reaches both the punishment prescribed for the offense and the guilt of the offender;
and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that
in the eye of the law the offender is as innocent as if he had never committed the offense. If
granted before conviction, it prevents any of the penalties and disabilities, consequent upon
conviction, from attaching; if granted after conviction, it removes the penalties and disabilities
and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new
credit and capacity. 14

Such generalities have not been universally accepted, recognized or approved. 15 The modern
trend of authorities now rejects the unduly broad language of the Garland case (reputed to be
perhaps the most extreme statement which has been made on the effects of a pardon). To our
mind, this is the more realistic approach. While a pardon has generally been regarded as blotting
out the existence of guilt so that in the eye of the law the offender is as innocent as though he
never committed the offense, it does not operate for all purposes. The very essence of a pardon is
forgiveness or remission of guilt. Pardon implies guilt. It does not erase the fact of the
commission of the crime and the conviction thereof. It does not wash out the moral stain. It
involves forgiveness and not forgetfulness. 16

The better considered cases regard full pardon (at least one not based on the offender's innocence)
as relieving the party from all the punitive consequences of his criminal act, including the
disqualifications or disabilities based on the finding of guilt. 17 But it relieves him from nothing
more. "To say, however, that the offender is a "new man", and "as innocent as if he had never
committed the offense;" is to ignore the difference between the crime and the criminal. A person
adjudged guilty of an offense is a convicted criminal, though pardoned; he may be deserving of
punishment, though left unpunished; and the law may regard him as more dangerous to society
than one never found guilty of crime, though it places no restraints upon him following his
conviction." 18

A pardon looks to the future. It is not retrospective. 19 It makes no amends for the past. It affords
no relief for what has been suffered by the offender. It does not impose upon the government any
obligation to make reparation for what has been suffered. "Since the offense has been established
by judicial proceedings, that which has been done or suffered while they were in force is
presumed to have been rightfully done and justly suffered, and no satisfaction for it can be
required." 20 This would explain why petitioner, though pardoned, cannot be entitled to receive
backpay for lost earnings and benefits.

Petitioner maintains that when she was issued absolute pardon, the Chief Executive declared her
not guilty of the crime for which she was convicted. In the case of State v. Hazzard, 21 we find
this strong observation: "To assume that all or even a major number of pardons are issued
because of innocence of the recipients is not only to indict our judicial system, but requires us to
assume that which we all know to be untrue. The very act of forgiveness implies the commission
of wrong, and that wrong has been established by the most complete method known to modern
civilization. Pardons may relieve from the disability of fines and forfeitures attendant upon a
conviction, but they cannot erase the stain of bad character, which has been definitely fixed. 22

In this ponencia, the Court wishes to stress one vital point: While we are prepared to concede
that pardon may remit all the penal consequences of a criminal indictment if only to give
meaning to the fiat that a pardon, being a presidential prerogative, should not be circumscribed
by legislative action, we do not subscribe to the fictitious belief that pardon blots out the guilt of
an individual and that once he is absolved, he should be treated as if he were innocent. For
whatever may have been the judicial dicta in the past, we cannot perceive how pardon can
produce such "moral changes" as to equate a pardoned convict in character and conduct with one
who has constantly maintained the mark of a good, law-abiding citizen.

Pardon cannot mask the acts constituting the crime. These are "historical" facts which, despite
the public manifestation of mercy and forgiveness implicit in pardon, "ordinary, prudent men
will take into account in their subsequent dealings with the actor." 23

Pardon granted after conviction frees the individual from all the penalties and legal disabilities
and restores him to all his civil rights. But unless expressly grounded on the person's innocence
(which is rare), it cannot bring back lost reputation for honesty, integrity and fair dealing. 24
This must be constantly kept in mind lest we lose track of the true character and purpose of the
privilege.

Thus, notwithstanding the expansive and effusive language of the Garland case, we are in full
agreement with the commonly-held opinion that pardon does not ipso facto restore a convicted
felon to public office necessarily relinquished or forfeited by reason of the conviction 25
although such pardon undoubtedly restores his eligibility for appointment to that office. 26

The rationale is plainly evident Public offices are intended primarily for the collective protection,
safety and benefit of the common good. They cannot be compromised to favor private interests.
To insist on automatic reinstatement because of a mistaken notion that the pardon virtually
acquitted one from the offense of estafa would be grossly untenable. A pardon, albeit full and
plenary, cannot preclude the appointing power from refusing appointment to anyone deemed to
be of bad character, a poor moral risk, or who is unsuitable by reason of the pardoned conviction.

For petitioner Monsanto, this is the bottom line: the absolute disqualification or ineligibility from
public office forms part of the punishment prescribed by the Revised Penal Code for estafa thru
falsification of public documents. It is clear from the authorities referred to that when her guilt
and punishment were expunged by her pardon, this particular disability was likewise removed.
Henceforth, petitioner may apply for reappointment to the office which was forfeited by reason
of her conviction. And in considering her qualifications and suitability for the public post, the
facts constituting her offense must be and should be evaluated and taken into account to
determine ultimately whether she can once again be entrusted with public funds. Stated
differently, the pardon granted to petitioner has resulted in removing her disqualification from
holding public employment but it cannot go beyond that. To regain her former post as assistant
city treasurer, she must re-apply and undergo the usual procedure required for a new
appointment.

Finally, petitioner has sought exemption from the payment of the civil indemnity imposed upon
her by the sentence. The Court cannot oblige her. Civil liability arising from crime is governed
by the Revised Penal Code. It subsists notwithstanding service of sentence, or for any reason the
sentence is not served by pardon, amnesty or commutation of sentence. Petitioner's civil liability
may only be extinguished by the same causes recognized in the Civil Code, namely: payment,
loss of the thing due, remission of the debt, merger of the rights of creditor and debtor,
compensation and novation. 27

WHEREFORE, the assailed resolution of former Deputy Executive Secretary Fulgencio S.
Factoran, Jr., dated April 15, 1986, is AFFIRMED. No costs.

SO ORDERED.

Narvasa, Paras, Gancayco, Bidin, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

Melencio-Herrera, J., concurs in the result.

Separate Opinions

PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the majority opinion.

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three
(3) other accused, she was charged before the Sandiganbayan with the complex crime of Estafa
through falsification of public documents. After trial, the accused were convicted and sentenced
to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional, as
minimum, to ten (10) years and one (1) day of prision correccional, as maximum, and to pay a
fine of P 3,500.00. They were also ordered to jointly and severally indemnify the government in
the sum of P 4,892.50 representing the balance of the amount defrauded and to pay the costs
proportionately.

Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner
then filed a motion for reconsideration but while said motion was pending, President Ferdinand
E. Marcos extended to her on 17 December 1984 an absolute pardon which she accepted on 21
December 1984.

By reason of said absolute pardon, petitioner in representations before the City Treasurer of
Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed to
re-assume her former office, as of 1 August 1982 (the date of her preventive suspension), that
she be paid her back salaries for the entire period of her suspension, and that she be not required
to pay her proportionate share of the amount of P 4,892.50.

Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement
as well as her other claims, because of which denial, this petition for review on certiorari was
filed before the Court seeking the setting aside and reversal of the decision of the respondent
Assistant Executive Secretary, on the main contention that, as a public officer who has been
granted an absolute pardon by the President, she is entitled to reinstatement to her former
position without need of a new appointment, and to the other reliefs prayed for.

There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same
time, Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on the
pardoned's right to hold office, suffrage and on his civil liability. It states:

ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public
office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence. (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the
pardon extended by the President to the petitioner did not per se entitle her to again hold public
office (including therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor
did such pardon extinguish her civil liability for the criminal conviction, subject matter of the
pardon.

An examination of the presidential pardon in question shows that, while petitioner was granted
"an absolute and unconditional pardon and restored to full civil and political rights", yet, nothing
therein expressly provides that the right to hold public office was thereby restored to the
petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public office,
notwithstanding a pardon unless the right is expressly restored by the pardon, it is my considered
opinion that, to the extent that the pardon granted to the petitioner did not expressly restore the
right to hold public office as an effect of such pardon, that right must be kept away from the
petitioner.

It is a recognized principle in public law hopefully to be honored more in its compliance
rather than in its breach that a "public office is a public trust." The restoration of the right to
hold public office to one who has lost such right by reason of conviction in a criminal case, but
subsequently pardoned, cannot be left to inference, no matter how intensely arguable, but must
be stated in express, explicit, positive and specific language. To require this would not be asking
too much.

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs.
Palatino, 72 Phil. 441 which may be understood to mean that an absolute pardon, without
qualification, restores full civil rights which have been construed, in turn, to include the right to
hold public office (Versoza vs. Fernandez, 55 Phil. 323).

If such be the message of said cases, then I submit that a modification is in order, so that an
absolute pardon to work a restoration of the right to hold public office must expressly so state, in
order to give substance and meaning to the sound provisions of Article 36 of the Revised Penal
Code, particularly in the light of our times and experience.

ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.

FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also
join in the separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a
few brief statements, basically for my own clarification. Article 36 of the Revised Penal Code
states:

Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold
public office, or the right of suffrage, unless such rights be expressly restored by the terms of the
pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence. (Emphasis supplied)

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the
Revised Penal Code in its following provisions:

Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason
of commutation or pardon shall carry with it that of perpetual absolute disqualification and that
of civil interdiction during thirty years following the date of sentence, unless such accessory
penalties have been expressly remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The
penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.

Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry
with it that of temporary absolute disqualification and that of perpetual special disqualification
from the right of suffrage which the offender shall suffer although pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.

Article 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional
shall carry with it that of suspension from public office, from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of suffrage, if the duration of
said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification
provided in this article although pardoned as to the principal penalty, unless the same shall have
been expressly remitted in the pardon. (Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of
estafa through falsification of public documents, included the accessory penalties of temporary
absolute disqualification from public office or employment and perpetual special disqualification
from the right of suffrage. The 17 December 1984 pardon extended to petitioner in the instant
case was written on a standard printed form which states in printed words that it was "an absolute
and unconditional pardon [which] restored [petitioner] to full civil and political rights." 1 While
the right of suffrage and the right to hold public office or employment are commonly regarded as
"political rights," 2 it must be noted that there are other "political rights" 3 and that the pardon
given to petitioner did not expressly and in printer's ink restore to petitioner the particular right to
hold public office and the specific right to vote at elections and plebiscites.

I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a
public trust, Articles 36 and 40-43 appropriately require a very high degree of explicitness if a
pardon is to work the restoration of such right to petitioner. Exactly the same point may, of
course, be made in respect of the restoration of the right to vote.

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books
since 1930. I believe that they have been left intact by the constitutional provisions on pardon,
whether one refers to the 1935 Constitution or to the 1973 and 1987 Constitutions. I do not
believe that Articles 36, et al. collided with any provision or principle embodied in either of our
prior constitutions. The Chief Justice appears to agree with this position when he referred to
Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on, however, to say (in page 13)
that: "the pardon granted to petitioner has resulted in removing her disqualification from holding
public employment but it cannot go beyond that."

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been
shown to be an unconstitutional restriction on the pardoning power of the President. The
limitation on the President's pardoning power, if limitation it be, does not appear to be an
unreasonably onerous one. Articles 36, et al. merely require the President to become completely
explicit if the pardon he extends is intended to wipe out not merely the principal but also the
accessory penalty of disqualification from holding public office and from voting and to restore
the recipient of the pardon to the exercise of such fundamental political rights. Such requirement
of explicitness seems entirely in line with the fundamental point made by the Chief Justice that a
pardon does not blot out the factual guilt of the recipient of the pardon. In other words, the mere
grant of a pardon to a public officer or employee who has been unfaithful to the public trust and
sentenced to disqualification from voting and from holding such office, does not create the
presumption that the recipient of the pardon has thereby suddenly become morally eligible once
more to exercise the right to vote and to hold public office.

In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold
public office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the
assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.

Melencio-Herrera, Gutierrez, Jr., Cruz, Sarmiento, JJ., concur.



Separate Opinions

PADILLA, J.:

I concur in the result but on grounds different from those relied upon by the majority opinion.

Petitioner Salvacion A Monsanto was Assistant Treasurer of Calbayog City. Together with three
(3) other accused, she was charged before the Sandiganbayan with the complex crime of Estafa
through falsification of public documents. After trial, the accused were convicted and sentenced
to imprisonment of four (4) years, two (2) months and one (1) day of prision correccional, as
minimum, to ten (10) years and one (1) day of prision correccional, as maximum, and to pay a
fine of P 3,500.00. They were also ordered to jointly and severally indemnify the government in
the sum of P 4,892.50 representing the balance of the amount defrauded and to pay the costs
proportionately.

Petitioner appealed the judgment of conviction to this Court which affirmed the same. Petitioner
then filed a motion for reconsideration but while said motion was pending, President Ferdinand
E. Marcos extended to her on 17 December 1984 an absolute pardon which she accepted on 21
December 1984.

By reason of said absolute pardon, petitioner in representations before the City Treasurer of
Calbayog, the Ministry of Finance and the Office of the President, asked that she be allowed to
re-assume her former office, as of 1 August 1982 (the date of her preventive suspension), that
she be paid her back salaries for the entire period of her suspension, and that she be not required
to pay her proportionate share of the amount of P 4,892.50.

Respondent Assistant Executive Secretary denied petitioner's request for automatic reinstatement
as well as her other claims, because of which denial, this petition for review on certiorari was
filed before the Court seeking the setting aside and reversal of the decision of the respondent
Assistant Executive Secretary, on the main contention that, as a public officer who has been
granted an absolute pardon by the President, she is entitled to reinstatement to her former
position without need of a new appointment, and to the other reliefs prayed for.

There can be no dispute that the pardon extinguished petitioner's criminal liability. At the same
time, Art. 36 of the Revised Penal Code categorically covers the effects of a pardon on the
pardoned's right to hold office, suffrage and on his civil liability. It states:

ART. 36. Pardon; its effects. - A pardon shall not work the restoration of the right to hold public
office, or the right of suffrage, unless such rights be expressly restored by the terms of the pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence. (Emphasis supplied)

Applying Art. 36 of the Revised Penal Code to the case at bar, it is, to my mind, clear that the
pardon extended by the President to the petitioner did not per se entitle her to again hold public
office (including therefore the office of Assistant Treasurer, Calbayog City) or to suffrage; nor
did such pardon extinguish her civil liability for the criminal conviction, subject matter of the
pardon.

An examination of the presidential pardon in question shows that, while petitioner was granted
"an absolute and unconditional pardon and restored to full civil and political rights", yet, nothing
therein expressly provides that the right to hold public office was thereby restored to the
petitioner. In view of the express exclusion by Art. 36, RPC of the right to hold public office,
notwithstanding a pardon unless the right is expressly restored by the pardon, it is my considered
opinion that, to the extent that the pardon granted to the petitioner did not expressly restore the
right to hold public office as an effect of such pardon, that right must be kept away from the
petitioner.

It is a recognized principle in public law-hopefully to be honored more in its compliance rather
than in its breach that a "public office is a public trust." The restoration of the right to hold public
office to one who has lost such right by reason of conviction in a criminal case, but subsequently
pardoned, cannot be left to inference, no matter how intensely arguable, but must be stated in
express, explicit, positive and specific language. To require this would not be asking too much.

I am aware that there are broad statement in Cristobal vs. Labrador, 71 Phil. 341 and Pelobello vs.
Palatino, 72 Phil. 441 which may be understood to mean that an absolute pardon, without
qualification, restores full civil rights which have been construed, in turn, to include the right to
hold public office (Versoza vs. Fernandez, 55 Phil. 323).

If such be the message of said cases, then I submit that a modification is in order, so that an
absolute pardon to work a restoration of the right to hold public office must expressly so state, in
order to give substance and meaning to the sound provisions of Article 36 of the Revised Penal
Code, particularly in the light of our times and experience.

ACCORDINGLY, I vote to DENY the petition.

Melencio-Herrera, Sarmiento, JJ., concur.

FELICIANO, J., concurring:

I concur in the result reached in the important and eloquent opinion of the Chief Justice. I also
join in the separate concurring opinion of Mr. Justice Padilla. At the same time, I would add a
few brief statements, basically for my own clarification. Article 36 of the Revised Penal Code
states:

Article 36. Pardon; its effects. - A pardon shall not work the registration of the right to hold
public office, or the right of suffrage, unless such rights be expressly restored by the terms of the
pardon.

A pardon shall in no case exempt the culprit from the payment of the civil indemnity imposed
upon him by the sentence. (Emphasis supplied)

It is worthy of note that the rule embodied in Article 36 is reiterated four (4) times by the
Revised Penal Code in its following provisions:

Article 40. Death-Its accessory penalties. - The death penalty, when it is not executed by reason
of commutation or pardon shall carry with it that of perpetual absolute disqualification and that
of civil interdiction during thirty years following the date of sentence, unless such accessory
penalties have been expressly remitted in the pardon.

Article 41. Reclusion perpetua and reclusion temporal. - Their accessory penalties. - The
penalties of reclusion perpetua and reclusion temporal shall carry with them that of civil
interdiction for life or during the period of the sentence as the case may be, and that of perpetual
absolute disqualification which the offender shall suffer even though pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.

Article 42. Prision mayor - Its accessory penalties. - The penalty of prision mayor shall carry
with it that of temporary absolute disqualification and that of perpetual special disqualification
from the right of suffrage which the offender shall suffer although pardoned as to the principal
penalty, unless the same shall have been expressly remitted in the pardon.

Article 43. Prision correccional - Its accessory penalties. - The penalty of prision correccional
shall carry with it that of suspension from public office, from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of suffrage, if the duration of
said imprisonment shall exceed eighteen months. The offender shall suffer the disqualification
provided in this article although pardoned as to the principal penalty, unless the same shall have
been expressly remitted in the pardon. (Emphasis supplied)

The Chief Justice points out that the penalty imposed upon petitioner for the complex crime of
estafa through falsification of public documents, included the accessory penalties of temporary
absolute disqualification from public office or employment and perpetual special disqualification
from the right of suffrage. The 17 December 1984 pardon extended to petitioner in the instant
case was written on a standard printed form which states in printed words that it was "an absolute
and unconditional pardon [which] restored [petitioner] to full civil and political rights." 1 While
the right of suffrage and the right to hold public office or employment are commonly regarded as
"political rights," 2 it must be noted that there are other "political rights" 3 and that the pardon
given to petitioner did not expressly and in printer's ink restore to petitioner the particular right to
hold public office and the specific right to vote at elections and plebiscites.

I join in the basic point of Mr. Justice Padilla that because of the nature of a public office as a
public trust, Articles 36 and 40-43 appropriately require a very high degree of explicitness if a
pardon is to work the restoration of such right to petitioner. Exactly the same point may, of
course, be made in respect of the restoration of the right to vote.

Articles 36 and 40-43 of the Revised Penal Code, quoted above, have been in our statute books
since 1930. I believe that they have been left intact by the constitutional provisions on pardon,
whether one refers to the 1935 Constitution or to the 1973 and 1987 Constitutions. I do not
believe that Articles 36, et al. collided with any provision or principle embodied in either of our
prior constitutions. The Chief Justice appears to agree with this position when he referred to
Article 36 of the Revised Penal Code (Opinion, p. 5). He goes on, however, to say (in page 13)
that: "the pardon granted to petitioner has resulted in removing her disqualification from holding
public employment but it cannot go beyond that."

It is submitted, with respect, that Articles 36, et al. of the Revised Penal Code have not been
shown to be an unconstitutional restriction on the pardoning power of the President. The
limitation on the President's pardoning power, if limitation it be, does not appear to be an
unreasonably onerous one. Articles 36, et al. merely require the President to become completely
explicit if the pardon he extends is intended to wipe out not merely the principal but also the
accessory penalty of disqualification from holding public office and from voting and to restore
the recipient of the pardon to the exercise of such fundamental political rights. Such requirement
of explicitness seems entirely in line with the fundamental point made by the Chief Justice that a
pardon does not blot out the factual guilt of the recipient of the pardon. In other words, the mere
grant of a pardon to a public officer or employee who has been unfaithful to the public trust and
sentenced to disqualification from voting and from holding such office, does not create the
presumption that the recipient of the pardon has thereby suddenly become morally eligible once
more to exercise the right to vote and to hold public office.

In my view, the pardon extended to petitioner was ineffective to restore to her the right to hold
public office and on this ground, I vote to DENY the Petition for Review and to AFFIRM the
assailed Resolution of the then Executive Secretary Fulgencio S. Factoran, Jr.


SABELLO VS DEPARTMENT OF EDUCATION
G.R. No. 87687 December 26, 1989

ISABELO T. SABELLO, petitioner,
vs.
DEPARTMENT OF EDUCATION, CULTURE AND SPORTS, respondents.



GANCAYCO, J.:

In this petition filed by a non-lawyer by reason of alleged poverty, We are called upon to decide
a unique issue of which shall be given more importance the legal technicalities of the law or the
fundamental principles of justice and fairness.

The facts are not in dispute, as follows:

Petitioner, was the Elementary School Principal of Talisay and also the Assistant Principal of the
Talisay Barangay High School of the Division of Gingoog City. The barangay high school was
in deficit at that time due to the fact that the students could hardly pay for their monthly tuition
fees. Since at that time also, the President of the Philippines who was earnestly campaining was
giving aid in the amount of P 2,000.00 for each barrio, the barrio council through proper
resolutions alloted the amount of P 840.00 to cover up for the salaries of the high school teachers,
with the honest thought in mind that the barrio high school was a barrio project and as such
therefore, was entitled to its share of the RICD fund in question. The only part that the herein
petitioner played was his being authorized by the said barrio council to withdraw the above
amount and which was subsequently deposited in the City Treasurer's Office in the name of the
Talisay Barrio High School. That was a grave error on the part of the herein petitioner as it
involves the very intricacies in the disbursement of government funds and of its technicalities.
Thus, the herein petitioner, together with the barrio captain, were charged of the violation of
Republic Act 3019, and both were convicted to suffer a sentence of one year and disqualification
to hold public office. The herein petitioner appealed his case to the Court of appeals, Manila. The
Court of appeals modified the decision by eliminating the subsidiary imprisonment in case of
insolvency in the payment of one-half of the amount being involved. The herein petitioner, being
financially battered, could no longer hire a lawyer to proceed to the highest court of the land.

Finally, the herein petitioner was granted an ABSOLUTE PARDON by the President of the
Republic of the Philippines, restoring him to 'full civil and political rights.' With this instrument
on hand, the herein petitioner applied for reinstatement to the government service, only to be
reinstated to the wrong position of a mere classroom teacher and not to his former position as
Elementary School Principal I. 1

Petitioner now prays to this Court for the following relief:

1. (that he be) Reinstated to his former position as Elementary School Principal I;

2. His government services be made continuous since September 10, 1948 which is his original
appointment until the present time;

3. (that he be) Given his back salaries corresponding to the period from September 1, 1971 to
November 23,1982;

4. That all his service credits duly earned be restored;

5. And, that all other rights and privileges not mentioned herein shall also be granted. (Petition, p.
2) 2

The Solicitor General comments that there is no justiciable controversy in this case because the
issue involved is whether or not petitioner merits reappointment to the position he held prior to
his conviction that of Elementary Principal I. The Division of City Schools, Gingoog City,
Region X, Department of Education and Culture, did not act on petitioner's request. Hence, the
present petition.

We believe otherwise. There is here a justiciable controversy. Petitioner claims he must be
restored to the same position he was in before he was convicted on a mere technical error and for
which he was given an absolute pardon.

This is not a hypothetical or abstract dispute. It is not academic or moot for, to our mind, there is
a definite and concrete controversy touching the legal relations of parties having adverse legal
relations. This is a real and substantial controversy admitting of specific relief through a court
decree that is conclusive in character. The case does not call for a mere opinion or advise, but for
affirmative relief .

As a general rule, the question of whether or not petitioner should be reappointed to his former
position is a matter of discretion of the appointing authority, but under the circumstances of this
case, if the petitioner had been unfairly deprived of' what is rightfully his, the discretion is
qualified by the requirements of giving justice to the petitioner. It is no longer a matter of
discretion on the part of the appointing power, but discretion tempered with fairness and justice.

As to the argument that the Department of Education, Culture and Sports cannot be sued, the
only answer is that its officials can be sued for alleged grave errors in their official acts. Again,
We ignore technicality by considering this a suit against the officials of this government agency.

Taking into consideration that this petition is filed by a non-lawyer, who claims that poverty
denies him the services of a lawyer, We also set aside the requirement of exhaustion of
administrative remedies and resolved to go direct to the merits of the petition.

In Monsanto vs. Factoran, Jr., 3 this Court held that the absolute disqualification from office or
ineligibility from public office forms part of the punishment prescribed under the penal code and
that pardon frees the individual from all the penalties and legal disabilities and restores him to all
his civil rights. Although such pardon restores his eligibility to a public office it does not entitle
him to automatic reinstatement. He should apply for reappointment to said office.

In the present case after his absolute pardon, petitioner was reinstated to the service as a
classroom teacher by the Department of Education, Culture and Sports.

As there are no circumstances that would warrant the diminution in his rank, justice and equity
dictate that he be returned to his former position of Elementary School Principal I and not to that
of a mere classroom teacher.

However, the Court cannot grant his prayer for backwages from September 1, 1971 to November
23, 1982 since in Monsanto 4 this Court said he is not entitled to automatic reinstatement.
Petitioner was lawfully separated from the government service upon his conviction for an
offense. Thus, although his reinstatement had been duly authorized, it did not thereby entitle him
to backwages. Such right is afforded only to those who have been illegally dismissed and were
thus ordered reinstated or to those otherwise acquitted of the charge against them.

In the same light, the Court cannot decree that his government service be made continuous from
September 10, 1948 to the present when it is not. At any rate when he reaches the compulsory
age of retirement, he shall get the appropriate retirement benefits as an Elementary School
Principal I and not as a mere classroom teacher.

WHEREFORE, the petition is GRANTED in that the Secretary of the Department of Education,
Culture and Sports and/or his duly authorized representative is hereby directed to appoint
petitioner to the position of Elementary School Principal I or it equivalent, without
pronouncement as to cost. This decision is immediately executory.

SO ORDERED.

GARCIA VS COA
G.R. No. 75025 September 14, 1993

VICENTE GARCIA, petitioner,
vs.
THE HONORABLE CHAIRMAN, COMMISSION ON AUDIT, THE HONORABLE
MINISTER, LAND TRANSPORTATION AND COMMUNICATIONS, THE REGIONAL
DIRECTOR, TELECOM REGIONAL OFFICE NO. IV, respondents.

Eulogio B. Alzaga for petitioner.

The Solicitor General for respondents.



BELLOSILLO, J.:

Petitioner comes to us on a petition for review on certiorari of the decision of 23 July 1985 of
respondent Commission on Audit (COA) denying his claim for payment of back wages, after he
was reinstated to the service pursuant to an executive clemency. He prays for the extraordinary
remedy of mandamus against public respondents to enforce his claim.

Petitioner was a Supervising Lineman in the Region IV Station of the Bureau of
Telecommunications in Lucena City. On 1 April 1975, petitioner was summarily dismissed from
the service on the ground of dishonesty in accordance with the decision of the then Ministry of
Public Works, Transportation and Communications in Adm. Case No. 975 for the loss of several
telegraph poles which were located at the Sariaya-Lucena City and Mauban-Sampaloc, Quezon,
telecom lines. Petitioner did not appeal from the decision.

Based on the same facts obtaining in the administrative action, a criminal case for qualified theft
was filed against petitioner with the then Court of First Instance (now Regional Trial Court) of
Quezon. On 23 January 1980, the trial court rendered its decision acquitting petitioner of the
offense charged.

Consequently, petitioner sought reinstatement to his former position
in view of his acquittal in the criminal case. In an indorsement dated 7 April 1980, petitioner's
request to be reinstated was denied by the Bureau of Telecommunications. Hence, petitioner
pleaded to the President of the Philippines for executive clemency.

On 26 August 1981, acting on the favorable indorsements of the then Ministry of Transportation
and Communications and the Civil Service Commission, Deputy Presidential Executive
Assistant Joaquin T. Venus, Jr., by authority of the President, per Resolution No. O.P. 1800,
granted executive clemency to petitioner.

Petitioner thereafter filed with respondent COA a claim for payment of back salaries effective 1
April 1975, the date of his dismissal from the service. This was denied by the COA in its 5th
Indorsement dated 12 October 1982 on the ground that the executive clemency granted to him
did not provide for the payment of back salaries and that he has not been reinstated in the service.

It appears that petitioner was recalled to the service on 12 March 1984 but the records do not
show whether petitioner's reinstatement was to the same position of Supervising Lineman. 1

Petitioner again filed a claim to recover his back salaries for the period from 1 April 1975, the
date of his dismissal, to 12 March 1984, when he was reinstated. In Decision No. 362 embodied
in its 3rd Indorsement dated 23 July 1985, respondent COA denied the claim stating that the
executive clemency was silent on the payment of back wages and that he had not rendered
service during the period of his claim.

Aggrieved, petitioner appealed the COA decision of 23 July 1985 to the Office of the President.
On 21 April 1986, Deputy Executive Secretary Fulgencio S. Factoran, Jr., by authority of the
President, denied the appeal "due to legal and constitutional constraint," 2 holding that this Court
is the proper forum to take cognizance of the appeal on certiorari from the decision of the COA,
citing Art. XII-(D), Sec. 2, par. 2, of the 1973 Constitution (now Art. IX-[A], Sec. 7, of the 1987
Constitution).

Hence, petitioner filed the instant petition on the issue of whether he is entitled to the payment of
back wages after having been reinstated pursuant to the grant of executive clemency.

In his comment to the petition, the Solicitor General recommends that the petition be given due
course and the petitioner be awarded back wages to be determined in the light of existing laws
and jurisprudence. The Solicitor General submits that the award is implicit in the grant of
executive clemency, the ultimate objective of which is to accord full justice to petitioner.

On the other hand, the COA asks this Court to deny the petition for the following reasons: (a)
petitioner's acquittal in the criminal case did not necessarily free him from administrative
liability; (b) petitioners unexplained failure to appeal the decision in the administrative case was
tantamount to a waiver or renunciation of his right to back wages; (c) the executive clemency
was granted to petitioner for the purpose of reinstatement only since it was silent on the matter of
back wages; (d) the award of back wages is allowed only if the respondent is exonerated from
the administrative charge that his suspension or dismissal is declared illegal or unjustified by the
court; and, (e) petitioner did not render any service during the period before his reinstatement,
hence, he is not entitled to back wages based on the "no service, no pay" rule.

The petition is meritorious.

Every civilized country recognizes, and has therefore provided for, the pardoning power to be
exercised as an act of grace and humanity, in proper cases. Without such a power of clemency, to
be exercised by some department or functionary of a government, a country would be most
imperfect and deficient in its political morality and in that attribute of Deity whose judgments are
always tempered with money. 3

Our Constitution reposes in the President the power and the exclusive prerogative to extend
executive clemency under the following circumstances:

Except in cases of impeachment or as otherwise provided in this Constitution, the President may
grant reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by
final judgment.

He shall also have the power to grant amnesty with the concurrence of a majority of all the
Members of the Congress. 4

From among the different acts of executive clemency spelled out above, the clemency granted to
petitioner in the instant case partakes of the nature of an executive pardon. A reading of
Resolution No. 1800 partly quoted hereunder is enlightening:

In a 3rd Indorsement dated September 5, 1980, the Director of Telecommunications interposed
no objection to the petition, while the Minister of Transportation and Communications, in his 4th
Indorsement dated November 17, 1980, favorably recommended the grant of executive clemency
to petitioner for the reason that "while it is a rule that an administrative case is separate and
distinct from a criminal case and an acquittal in the latter case dos not ipso facto result in the
exoneration in the former case, yet an exception could arise if the basis for the acquittal was the
innocence of the accused as in the case of petitioner Garcia.

Asked for comment pursuant to Section 43 of Presidential Decree No. 807, the Civil service
Commission recommends the grant of executive clemency to petitioner in view of the findings of
the court that

instead of coming forward to the defense of the accused who actually was authorized to uproot or
recover the poles in question and of commending the latter for his high sense of responsibility in
preventing losses to the government, said high officials had even the temerity to disown and
deny the authority they gave to the accused resulting in his separation from the service and
having him all alone in defending himself against the accusation of the very government he tried
to protect.

After a careful study, this Office is inclined to grant executive clemency to petitioner in the light
of this decision of the court acquitting him of the crime of qualified theft which was based on the
same acts obtaining in Administrative Case No. 975 against him, coupled with the favorable
recommendation of the Minister of Transportation and Communications and the Civil Service
Commission.

In view of the foregoing, petitioner Vicente Garcia is hereby granted executive clemency. 5

Time and again this Court has unfolded the effects of a pardon upon the individual to whom it is
granted. In Monsanto v. Factoran, 6 we have firmly established the general rule that while a
pardon has generally been regarded as blotting out the existence of guilt so that in the eyes of the
law the offender is as innocent as though he never committed the offense, it does not operate for
all purposes. The very essence of a pardon is forgiveness or remission of guilt and not
forgetfulness . It does not erase the fact of the commission of the crime and the conviction
thereof. Pardon frees the individual from all the penalties and legal disabilities and restores to
him all his civil rights. Unless expressly grounded on the person's innocence, it cannot bring
back lost reputation for honesty, integrity and fair dealing. The pardoned offender regains his
eligibility for appointment to public office which was forfeited by reason of the conviction of the
offense. But since pardon does not generally result in automatic reinstatement because the
offender has to apply for reappointment, he is not entitled to back wages.

But, stated otherwise, if the pardon is based on the innocence of the individual, it affirms this
innocence and makes him a new man and as innocent; as if he had not been found guilty of the
offense charged. 7 When a person is given pardon because he did not truly commit the offense,
the pardon relieves the party from all punitive consequences of his criminal act, thereby restoring
to him his clean name, good reputation and unstained character prior to the finding of guilt.

In the case at bar, petitioner was found administratively liable for dishonesty and consequently
dismissed from the service. However, he was later acquitted by the trial court of the charge of
qualified theft based on the very same acts for which he was dismissed. The acquittal of
petitioner by the trial court was founded not on lack of proof beyond reasonable doubt but on the
fact that petitioner did not commit the offense imputed to him. Aside from finding him innocent
of the charge, the trial court commended petitioner for his concern and dedication as a public
servant. Verily, petitioner's innocence is the primary reason behind the grant of executive
clemency to him, bolstered by the favorable recommendations for his reinstatement by the
Ministry of Transportation and Communications and the Civil Service Commission.

The bestowal of executive clemency on petitioner in effect completely obliterated the adverse
effects of the administrative decision which found him guilty of dishonesty and ordered his
separation from the service. This can be inferred from the executive clemency itself exculpating
petitioner from the administrative charge and thereby directing his reinstatement, which is
rendered automatic by the grant of the pardon. This signifies that petitioner need no longer apply
to be reinstated to his former employment; he is restored to his office ipso facto upon the
issuance of the clemency.

Petitioner's automatic reinstatement to the government service entitles him to back wages. 8 This
is meant to afford relief to petitioner who is innocent from the start and to make reparation for
what he has suffered as a result of his unjust dismissal from the service. To rule otherwise would
defeat the very intention of the executive clemency, i.e., to give justice to petitioner. Moreover,
the right to back wages is afforded to those with have been illegally dismissed and were thus
ordered reinstated or to those otherwise acquitted of the charges against them. 9 There is no
doubt that petitioner's case falls within the situations aforementioned to entitle him to back
wages.

Further, it is worthy to note that the dismissal of petitioner was not the result of any criminal
conviction that carried with it forfeiture of the right to hold public office, but is the direct
consequence of an administrative decision of a branch of the Executive Department over which
the President, as its head, has the power of control. The President's control has been defined to
mean "the power of an officer to alter or modify or nullify or set aside what a subordinate officer
had done in the performance of his duties and to the judgment of the former for the latter." 10 In
pardoning petitioner and ordering his reinstatement, the Chief Executive exercised his power of
control and set aside the decision of the Ministry of Transportation and Communications. The
clemency nullified the dismissal of petitioner and relieved him from administrative liability. The
separation of the petitioner from the service being null and void, he is thus entitled to back wages.

After having been declared innocent of the crime of qualified theft, which also served as basis
for the administrative charge, petitioner should not be considered to have left his office for all
legal purposes, so that he is entitled to all the rights and privileges that accrued to him by virtue
of the office held, including back wages. 11

Established jurisprudence fixes recovery of back wages to a period of five (5) years to be paid an
illegally dismissed government employee who has been ordered reinstated. 12 The cases
heretofore decided by this Court show that petitioners therein were employees of local
governments who were removed from office by their local officials. The reasons given for their
removal were abolition of office or position, reduction of work force, or lack of funds on the part
of the local governments concerned, which reasons were found by this Court to be either devoid
of factual basis or not sufficiently proven, otherwise, their dismissal would have been valid and
justified. In contrast, the case before us is different, involving as it does circumstances that impel
us to deviate from the general rule previously laid down on the recovery of back wages for five
(15) years. Petitioner's reinstatement in the instant case which was ordered pursuant to a grant of
executive clemency was effected not because of lack of sufficient proof of his commission of the
offense but that, more importantly, he did not commit the offense charged. Verily, law, equity
and justice dictate that petitioner be afforded compassion for the embarrassment, humiliation and,
above all, injustice caused to him and his family by his unfounded dismissal. This Court cannot
help surmising the painful stigma that must have caused petitioner, the incursion on his dignity
and reputation, for having been adjudged, albeit wrongfully, a dishonest man, and worse, a thief.
Consequently, this Court finds it fair and just to award petitioner full back wages from 1 April
1975 when he was illegally dismissed, to 12 March 1984 when he was reinstated. The payment
shall be without deduction or qualification.

WHEREFORE, the petition is GRANTED. The decision of respondent Commission on Audit
dated 23 July 1985 is REVERSED and SET ASIDE, and a new one entered ordering public
respondents, the Chairman of the Commission on Audit, the Minister (now Secretary) of Land
Transportation and Communications, the Regional Director of Telecom Regional Office No. IV,
or whoever may be sitting in office in their stead, to pay the full amount of petitioner's back
salaries from 1 April 1975 to 12 March 1984 based on his latest salary scale.

SO ORDERED.


DETAIL
G.R. No. 86147 February 26, 1990

REPUBLIC OF THE PHILIPPINES, (Department of Education, Culture & Sports, Child &
Youth Research Center), and LUZ G. PALATTAO-CORPUZ, petitioners,
vs.
COURT OF APPEALS and JOSE P. LOPEZ, JR., respondents.

G.E. Aragones & Associates for private respondent.



MELENCIO-HERRERA, J.:

This Petition for Review on certiorari seeks the reversal of the Decision of the Court of Appeals
(Fourth Division), * dated 7 December 1988, affirming the "Partial Decision" of the Regional
Trial Court, Branch 135, Makati, Metro Manila, dated 24 September 1986, ordering petitioner
Luz B. Palattao-Corpuz to take official cognizance of the attendance of private respondent Jose P.
Lopez, Jr., at the Child and Youth Research Center (CYRC); to pay his salaries and benefits
from 23 April 1985 "to date"; and remanding the case to the Court of origin for further
proceedings on the issue of damages.

Petitioner Corpuz and Respondent Lopez, Jr., were the former Director and Assistant Director,
respectively, of the now defunct Child and Youth Research Center (CYRC) of the Department of
Education, Culture and Sports (DECS). Petitioner Corpuz is a Doctor of Medicine while
Respondent Lopez is a Bachelor of Laws graduate but not yet a member of the Bar.

Petitioner Republic of the Philippines (DECS/CYRC) has joined Petitioner Corpuz in this case,
on the ground that the acts for which she is taken to task by Respondent Lopez have been
performed in her official capacity.

The "bad blood" between the parties commenced when Respondent Lopez protested Petitioner
Corpuz appointment as CYRC Director on the ground that he had a better right to the position.
The dismissal of that protest by the Civil Service Commission was affirmed by this Court. Then
followed a series of cases, approximately forty-nine (49) in all, filed by Respondent Lopez
against Petitioner Corpuz and/or some of the CYRC Staff before different judicial and
administrative fora. The charges ranged from those of graft, grave misconduct, dishonesty,
inefficiency, and grave abuse of discretion. Most of the cases were dismissed, however, for
having been found to be frivolous except one case before the Ombudsman (TBP-86-00-1)
involving the same facts as in this case, which is awaiting the outcome herein.

On 11 July 1984, then MECS Minister Jaime C. Laya "temporarily detailed" Respondent Lopez
to the MECS Legal Office until further advice "in the exigencies of the service." Sometime later,
he was transferred to the Planning Service Office of the MECS, it appearing that he was facing
charges before the Legal Division, which he, however, denied.

The records disclose that on 16 April 1985, Domingo B. Nunez, Research Specialist and Chief of
the Intellectual Emotional Development Research Unit of the CYRC, tendered his resignation as
such "because I cannot stand the harassment of the Assistant Director, Mr. Jose P. Lopez, is
doing to us employees. I am afraid I cannot continue working with dignity and with peace of
mind in such situation." In another letter of the same date, Joseph D. de los Santos, Senior
Educational Researcher of the CYRC, also reported on an act of harassment on his person by
Respondent Lopez and concluding "I doubt whether I can stay long enough with the office with
this kind of environment." On 7 May 1985, the "CYRC Staff Personnel and Contractual
Employees" of the CYRC wrote the Education Minister calling attention to the "prevailing sick
situation in the Office" and complaining against the acts of harassment "being done to the
employees of this Office by the Asst. Director, causing more harm than good."

After about 6-1/12 months of re-assignment, Respondent Lopez wrote a letter to Minister Laya
expressing his intention to resume his official position as CYRC Assistant Director. Having
received no response, he returned to the CYRC as Assistant Director on 18 February 1985
without official authorization.

This prompted Petitioner Corpuz to issue two (2) Memoranda on 21 February 1985: The first
was addressed to the CYRC Staff advising that Respondent Lopez would not be considered an
active member of the Staff until he first secured the proper authorization for his transfer. The
other was addressed to Lopez himself requesting him to submit an official order terminating his
"detail." In his reply, dated 22 February 1985, Respondent Lopez insisted on the validity of his
resumption of office stating that "no one can be detailed for more than three (3) months without
the written consent of the employee concerned" and that "detailed assignment beyond six (6)
months has to be approved by the CSC and the Office of the President." He also admonished
Petitioner Corpuz to recall and/or rectify her memoranda.

On 27 February 1985, Petitioner Corpuz again issued two Memoranda, one disputing
Respondent Lopez's reply and the other reiterating her stand that until he secured an
authorization from the MECS Minister to return to the CYRC, she would not consider him an
active member of its Staff.

On 6 March 1985, Respondent Lopez wrote a letter to the then MECS Deputy Minister
requesting clarification on the matter. The same advice as to the necessity of prior authorization
was given.

On 15 March 1985, Petitioner Corpuz addressed another memorandum to Respondent Lopez
insisting on his compliance with her directive and requiring him, effective on the same date, to
submit a record of his attendance duly signed by the Chief of the MECS Planning Service or an
approved application for leave of absence before. he could be entitled to his salary. Just the same,
Petitioner allowed the payment of Respondent's salaries and allowances for the period 18
February 1985 to 22 April 1985, but withheld those corresponding to the period 23 April to 14
August 1985 because of Respondent's refusal to comply with her directive to return to the MECS
Central Office.

On 1 April 1985, Respondent Lopez filed a Petition for mandamus with Damages against
Petitioner Corpuz, Minister Laya, and the Chief, Administrative Services, before the Regional
Trial Court (RTC), Branch 135 of Makati, Metro Manila. During the pendency of the case or, on
7 August 1985, then Minister Laya advised Respondent Lopez that his "temporary detail" in the
Planning Service Office of the Ministry had been rectified to "temporary assignment" effective 3
September 1984, to continue until further advice, and that approval from the office should first
be secured before returning to the CYRC. Respondent requested such clearance but since it was
left unanswered, he returned to the MECS Central Office presumably around 14 August 1985.

On 1 September 1985, Respondent Lopez dropped Minister Laya as defendant in his Second
Amended Petition leaving Petitioner Corpuz as the lone defendant.

In a 1st Indorsement, dated 16 October 1985, Petitioner Corpuz was informed by the Deputy
Minister of Education that the Ministry had approved the release of Respondent's salaries for the
period 23 April to 14 August 1985. This was reiterated by Minister Laya in his Fifth Indorsement,
dated 9 December 1985. Similarly, on 20 March 1986, then Secretary Lourdes Quisumbing
ordered such payment but the same was later reconsidered and recalled upon query from
Petitioner Corpuz regarding the matter.

On 24 September 1986, the RTC of Makati, Branch 135, rendered a "Partial Decision" ordering
Petitioner Corpuz to take official cognizance of Respondent Lopez's attendance at the CYRC: to
pay his salaries corresponding to the period from 23 April 1985 "to date"; and setting the case for
further hearing to determine the actual amount of damages allegedly sustained by him.

Petitioner appealed to Respondent Court of Appeals. During the pendency thereof, the CYRC
was abolished and both Petitioner and Respondent were retired from Government service.
Nevertheless, neither one could draw retirement benefits in view of the pendency of this suit.

On 7 December 1988, the Court of Appeals affirmed in toto the appealed RTC judgment.

On 24 February 1989, this Petition was filed, to which we gave due course. We required the
filing of Memoranda, the last of which was submitted on 20 October 1989.

The crucial issues for determination are: (1) whether or not Petitioner Corpuz was justified in
refusing to take official cognizance of Respondent Lopez's attendance as Assistant Director at
the CYRC and in withholding his salaries corresponding to the period; and (2) whether or not she
can be held liable in damages for such acts.

Upon the facts, we rule for Petitioner Corpuz.

It will be recalled that Respondent Lopez returned to the CYRC at his own instance without any
authorization from higher authorities. Petitioner Corpuz as CYRC Director, officially advised
him to secure that clearance, but he adamantly refused to obey a directive from his immediate
superior. Under the circumstances, Petitioner Corpuz as head of the office, was left with no
alternative but to withhold recognition of his attendance at the CYRC. To maintain discipline in
the office, and in the interests of the service, she could do no less.

Respondent Appellate Court, however, affirmed the finding of the Trial Court that the DECS
Minister's directive to Respondent Lopez was "defective" in that the term "detail" was used
instead of "re-assignment," which would have been the proper terminology. Indeed, a "detail" is
the movement from one Department or Agency to another which is temporary in nature (Section
4, Rule VI, Civil Service Rules on Personal Actions and Policies) whereas a "re-assignment" is
the movement of an employee from one organizational unit to another in the same Department or
Agency (Section 5, Ibid.). Be that as it may, the official intent of the directive was clear to move
Respondent Lopez away from the CYRC and locate him in the head office, "in the exigencies of
the service." Besides, proper rectification was made by Minister Laya on 7 August 1985
retroactive to 3 September 1984.

Both lower Courts opined, however, that the "re-assignment" was stage-managed by Petitioner
Corpuz under the pretext of "exigencies of the service." Notably, the directive to Respondent
Lopez was not issued by her but by the Education Minister himself. It is inconceivable that the
latter official would have allowed himself to have been used as such an unwitting tool. On the
contrary, he must have been aware of the "sick situation" in the CYRC, hence, the re-assignment
of Respondent Lopez to another unit in the Education Ministry.

As matters stood, Respondent Lopez brought upon himself the withholding of his salaries. When
he reported back to the CYRC on 18 February 1985 he did so at his own instance without prior
authorization. He was advised to secure such clearance on 21 February 1985 but he refused. The
directive to obtain the same was reiterated on 27 February 1985 by Petitioner Corpuz. Instead of
complying, he addressed a letter on 6 March 1985 to the Deputy Minister requesting clarification.
He was given the same opinion. On 15 March 1985, he was again reminded and was required to
submit a record of his attendance duly signed by the Chief of the MECS Planning Services or an
approved application for leave of absence before he could be entitled to his salary. He reacted by
stating that the requirement was "superfluous." And when he did comply, discrepancies were
discovered between his submissions and those in the CYRC logbook. Respondent Lopez was
himself, therefore, recreant in complying with the requirements for the release of his salaries.

It is true that Petitioner Corpuz had issued memoranda, dated 19 December 1985 and 7 January
1986, suggesting that Respondent Lopez withdraw his suit for mandamus in order to expedite the
release of his salaries. For this, she deserves censure specially since it was done "against the
advice of her counsel." Mitigating such sanction, however, is the provocation given by
Respondent Lopez, his open defiance of authority, and oppressive behavior towards his co-
employees.

It is inaccurate for Respondent Lopez to allege that he was paid his salaries for 18 February to 22
April 1985 without submission of his official time records. As certified to by the CYRC
Disbursing Officer on 22 May 1985, he received his salary for the second half of March 1985 on
2 April 1985 after he submitted his time card for the month of March. It was only from 23 April
1985 to 14 August 1985 that his salaries and allowances were again withheld upon petitioner's
instructions after she had received official confirmation from MECS in the latter's 1st
Indorsement, dated 22 April 1985, that prior MECS authorization was, in fact, required before he
could return to the CYRC. In this connection, it was reversible error, therefore, for both lower
Courts to have ordered payment of Respondent's salaries from 23 April 1985 "to date."

Petitioner Corpuz had not acted in bad faith in seeking clarification of the directives to pay
issued by the Education Department. Those were given only during the pendency of the case
below besides the fact that the order of Secretary Lourdes Quisumbing, who succeeded Minister
Laya, to pay Respondent Lopez's salaries was later withdrawn by her for further review.

In fine, Petitioner Corpuz' refusal to take official cognizance of Respondent Lopez's attendance
at the CYRC beginning 18 February 1985 was justified because it was clearly unauthorized and
in rebellious defiance of a Departmental directive. The Ministry itself came out with a definite
position on the matter only around 15 March 1985. Having acted by virtue of her authority to
administer the affairs of the defunct CYRC, adjudgment of damages against her is uncalled for as
this would virtually be a charge against the Republic of the Philippines, a sovereign state which
is not amenable to judgment for monetary claims without its consent (Garcia v. Armed Forces of
the Philippines, et al., L-20213, January 31, 1966, 16 SCRA 120; Syquia v. Almeda Lopez, 84
Phil. 312 [1949]; Sarasola v. Trinidad, 40 Phil. 252 [1919]). The mere allegation that a
government functionary is being sued in his personal capacity will not automatically remove him
from the protection of the law of public officers and, if appropriate, the doctrine of state
immunity. For there can be no legal right against the authority which makes the law on which the
right depends (Sanders vs. Veridiano II, G.R. No. 46930, 10 June 1988, 162 SCRA 88).

WHEREFORE, this Petition is GRANTED and the Court of Appeals' judgment under review,
promulgated on 7 December 1988, is hereby SET ASIDE. No costs.

SO ORDERED.
REASSIGNMENT
REEMPLOYMENT
ORTIZ VS COMELEC
G.R. No. 78957 June 28, 1988

MARIO D. ORTIZ, petitioner,
vs.
COMMISSION ON ELECTIONS and COMMISSION ON AUDIT, respondents.



FERNAN, J.:

In this petition for certiorari, petitioner presents before the Court the issue of whether or not a
constitutional official whose "courtesy resignation" was accepted by the President of the
Philippines during the effectivity of the Freedom Constitution may be entitled to retirement
benefits under Republic Act No. 1568, as amended.

Petitioner was appointed Commissioner of the Commission on Elections [COMELEC] by then
President Ferdinand E. Marcos "for a term expiring May 17, 1992." 1 He took his oath of office
on July 30, 1985.

On March 5, 1986, together with Commissioners Quirino D. Marquinez and Mangontawar G.
Guro, petitioner sent President Corazon C. Aquino a letter which reads as follows:

The undersigned Commissioners were appointed to the Commission on Elections on July 30,
1985.

Following the example of Honorable Justices of the Supreme Court, on the premise that we have
now a revolutionary government, we hereby place our position at your disposal. 2

Thereafter, or on March 25,1986, the Freedom Constitution was promulgated through
Proclamation No. 3, Artide III thereof provides:

SECTION 1. In the reorganization of the government, priority shall be given to measures to
promote economy, efficiency, and the eradication of graft and corruption.

SEC. 2. All elective and appointive officials and employees under the 1973 Constitution shall
continue in office until otherwise provided by proclamation or executive order or upon the
designation or appointment and qualification of their successors, if such is made within a period
of one year from February 25, 1986.

SEC. 3. Any public officer or employee separated from the service as a result of the
reorganization effected under this Proclamation shall, if entitled under the laws then in force,
receive the retirement and other benefits accruing thereunder.

On April 16,1986, the COMELEC, then composed of Chairman Ramon H. Felipe, Jr. and
Commissioners Froilan M. Bacungan, Quirino A. Marquinez, Mario D. Ortiz (petitioner herein),
Ruben E. Agpalo and Jaime J. Layosa, adopted Resolution No. 86-2364 approving the
application for retirement of Commissioners Victorino Savellano and Jaime Opinion. Seven days
later, the same body passed Resolution No. 862370 approving the application for retirement of
Commissioner Mangontawar B. Guro.

On July 21, 1986, the Deputy Executive Secretary requested Acting Chairman Felipe to convey
the information to Commissioners Marquinez, Ortiz, Agpalo and Layosa that the President had
"accepted, with regrets, their respective resignations, effective immediately." 3 After the
presidential acceptance of said "resignations," the new COMELEC was composed of Ramon H.
Felipe, Jr. as Chairman and Commissioners Froilan M. Bacungan, Leopoldo L. Africa, Haydee B.
Yorac, Andres R. Flores, Dario C, Rama and Anacleto D. Badoy, Jr., as members. It was to this
body that Commissioners Agpalo, Ortiz and Marquinez submitted on July 30, 1986 their
respective applications for retirement. They were followed by Commissioner Layosa on August
1, 1986.

To justify their petitions for retirement and their requests for payment of retirement benefits, all
seven former COMELEC Commissioners invoked Republic Act No. l568 as amended by
Republic Act No. 3595 and re-enacted by Republic Act No. 6118, specifically the following
provision:

SECTION 1. When the Auditor General or the Chairman or any Member of the Commission on
Elections retires from the service for having completed his term of office or by reason of his
incapacity to discharge the duties of his office, or dies while in the service, or resigns at any time
after reaching the age of sixty years but before the expiration of his term of office, he or his heirs
shall be paid in lump sum his salary for one year, not exceeding five years, for every year of
service based upon the last annual salary that he was receiving at the time of retirement
incapacity, death or resignation, as the case may be: Provided, That in case of resignation, he has
rendered not less than twenty years of service in the government; And provided, further, That he
shall receive an annuity payable monthly during the residue of his natural life equivalent to the
amount of monthly salary he was receiving on the date of retirement, incapacity or resignation.

In its en banc Resolution No. 86-2491 * of August 13, 1986 4 the COMELEC revoked
Resolutions Nos. 86-2364 dated April 16, 1986 and 86-2370 dated April 23, 1986, and denied
the applications for retirement of Commissioners Marquinez, Agpalo, Ortiz and Layosa on the
ground that they were "not entitled to retirement benefits under Republic Act No. 1568, as
amended" without specifying the reason therefor. 5

Petitioner Ortiz moved for the reconsideration of said resolution, contending that he was entitled
to the benefits under Republic Act No. 1568, as amended. He averred therein that he did not
resign but simply placed his position at the disposal of the President; that he had in fact
completed his term as Commissioner by the "change in the term of [his] office and eventual
replacement," and that he was entitled to retirement benefits under the aforementioned law
because Article 1186 of the Civil Code which states that "the condition [with regard to an
obligation] shall be deemed fulfilled when the obligor voluntarily prevents its fulfillment." He
invoked the aforequoted provisions of Proclamation No. 3 and cited the cases of former Chief
Justice Ramon C. Aquino and Associate Justice Hermogenes Concepcion, Jr. who were allowed
to retire by this Court and receive retirement benefits. 6

Petitioner's letter/motion for reconsideration was denied by the COMELEC in its en banc
resolution of October 1, 1986.** On December 18, 1986, petitioner appealed the denial of his
claim to the Chairman of the Commission on Audit [COA]. In its memorandum dated January 15,
1987, the COA referred the matter to the COMELEC resident auditor for comment and
recommendation. Having failed to receive any communication from the COA for some six
months, on June 3, 1987, petitioner reiterated his appeal thereto. Again, the matter was referred
to the COMELEC resident auditor with a request for immediate action thereon.

A month later, or on July 9, 1987, petitioner filed the instant petition for certiorari alleging that
the COMELEC's "arbitrary and unjust denial" of his claim for retirement benefits and of his
subsequent motion for reconsideration constitutes "grave and whimsical abuse of discretion
amounting to lack of jurisdiction" which can only be remedied through the instant petition in the
absence of an appeal or any plain, speedy and adequate remedy. 7 In his memorandum, however,
petitioner admits that, as correctly stated by the Solicitor General in respondents' comment on the
petition, this petition is basically one for a writ of mandamus aimed at compelling both the
COMELEC and the COA to approve his claim for retirement benefits. 8

We consider this case as a special civil action of both certiorari and mandamus and,
notwithstanding the Solicitor General's contention that action herein is premature as the COA
may yet render a decision favorable to the petitioner, We opt to decide this case to shed light on
the legal issue presented.

The respondents posit the view that petitioner's "voluntary resignation" prevented the completion
of his term of office, and, therefore, having rendered only sixteen years of service to the
government, he is not entitled to retirement benefits. 9

We disagree. Petitioner's separation from government service as a result of the reorganization
ordained by the then nascent Aquino government may not be considered a resignation within the
contemplation of the law. Resignation is defined as the act of giving up or the act of an officer by
which he declines his office and renounces the further right to use it. 10 To constitute a complete
and operative act of resignation, the officer or employee must show a clear intention to relinquish
or surrender his position accompanied by the act of relinquishment. 11 Resignation implies an
expression of the incumbent in some form, express or implied, of the intention to surrender,
renounce and relinquish the office, and its acceptance by competent and lawful authority. 12

From the foregoing it is evident that petitioner's "resignation" lacks the element of clear intention
to surrender his position. We cannot presume such intention from his statement in his letter of
March 5, 1986 that he was placing his position at the disposal of the President. He did not
categorically state therein that he was unconditionally giving up his position. It should be
remembered that said letter was actually a response to Proclamation No. 1 which President
Aquino issued on February 25,1986 when she called on all appointive public officials to tender
their "courtesy resignation" as a "first step to restore confidence in public administration.

Verily, a "courtesy resignation" can lot properly be interpreted as resignation in the legal sense
for it is not necessarily a reflection of a public official's intention to surrender his position.
Rather, it manifests his submission to the will of the political authority and the appointing power.

A stringent interpretation of courtesy resignations must therefore be observed, particularly in
cases involving constitutional officials like the petitioner whose removal from office entails an
impeachment proceeding. 13 For even if working for the government is regarded as no more than
a privilege, discharge for disloyalty or for doubt about loyalty may involve such legal rights as
those in reputation and eligibility for other employment. 14

The curtailment of his term not being attributable to any voluntary act on the part of the
petitioner, equity and justice demand that he should be deemed to have completed his term albeit
much ahead of the date stated in his appointment paper. Petitioner's case should be placed in the
same category as that of an official holding a primarily confidential position whose tenure ends
upon his superior's loss of confidence in him. His cessation from the service entails no removal
but an expiration of his term. 15

As he is deemed to have completed his term of office, petitioner should be considered retired
from the service. And, in the absence of proof that he has been found guilty of malfeasance or
misfeasance in office or that there is a pending administrative case against him, petitioner is
entitled to a life pension under Republic Act No. 1568 as amended and reenacted by Republic
Act No. 6118. He is, therefore, protected by the mantle of the Freedom Constitution specifically
Article III, Section 3 thereof which was in effect when he was replaced by the appointment and
qualification of a new Commissioner.

Parenthetically, to a public servant, pension is not a gratuity but rather a form of deferred
compensation for services performed and his right thereto commences to vest upon his entry into
the retirement system and becomes an enforceable obligation in court upon fulfillment of all
conditions under which it is to be paid. 16 Similarly, retirement benefits receivable by public
employees are valuable parts of the consideration for entrance into and continuation in public
employment. 17 They serve a public purpose and a primary objective in establishing them is to
induce able persons to enter and remain in public employment, and to render faithful and
efficient service while so employed. 18

Worth noting is the fact that, as originally enacted, Republic Act No. 1568 required not less than
twenty years of service in the government at the time of the retirement, death or resignation of
the Auditor General or the Chairman and any Member of the COMELEC. The same length of
service was required after Republic Act No. 3473 amended the law. However, Republic Act No.
3595 further amended Republic Act No. 1568 and the 20-year service requirement was mandated
only in case of resignation of the public official covered by the law. Although Republic Act No.
1568, as amended, was inoperative and abolished in Section 9 of Republic Act No. 4968, it was
re-enacted under Republic Act No. 6118.

On the respondents' assertion that the retirement law is clear and hence, there is no room for its
interpretation, We reiterate the basic principle that, being remedial in character, a statute creating
pensions should be liberally construed and administered in favor of the persons intended to be
benefited thereby. 19 This is as it should be because the liberal approach aims to achieve the
humanitarian purposes of the law in order that the efficiency, security, and well-being of
government employees may be enhanced. 20

WHEREFORE, respondent Commission on Elections denial of petitioner's application for
retirement benefits is hereby reversed and set aside. The Commission on Audit and other public
offices concerned are directed to facilitate the processing and payment of petitioner's retirement
benefits.

SO ORDERED.