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Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. L-30057 January 31, 1984 BRUNO O. APARRI, petitioner, vs. THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution for REMEDIOS O. FORTICH, as Chairman, ANGELINO M. BANZON, RAFAEL B. HILAO, VALERIANO PLANTILLA and SEVERO YAP, as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration (NARRA), respondents. Enrique D. Tayag for petitioner. Magno B. Pablo and Cipriano A. Tan for respondent Land Authority. MAKASIAR, J.: This petition for certiorari seeks to review the decision of the then Court of Appeals (now Intermediate Appellate Court under BP 129) dated September 24, 1968, affirming the decision of the then Court of First Instance (now Regional Trial Court), the dispositive portion of which is as follows: WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of the present petition for mandamus is hereby affirmed, without pronouncement as to costs (p. 50, rec.). The facts of the case are as follows: On January 15, 1960, private respondents (as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration created under Republic Act No. 1160, approved June 18, 1954 — NARRA) approved the following resolution: RESOLUTION NO. 13 (Series of 1960) RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Manager of the National Resettlement and Rehabilitation Administration (NARRA) with all the rights, prerogatives and compensation appurtenant thereto to take effect on January 16, 1960); RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above appointment of Mr. Aparri (p. 2, rec.). Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chairman of the NARRA Board, appointed petitioner Bruno O. Aparri as reflected in the following letter: Manila, January 22, 1960 Mr. Bruno O. Aparri c/o NARRA, Manila SIR: Public Officers and Election Laws 1
Transcript

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-30057 January 31, 1984

BRUNO O. APARRI, petitioner, vs.THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution for REMEDIOS O. FORTICH, as Chairman, ANGELINO M. BANZON, RAFAEL B. HILAO, VALERIANO PLANTILLA and SEVERO YAP, as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration (NARRA), respondents.

Enrique D. Tayag for petitioner.

Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.

MAKASIAR, J.:

This petition for certiorari seeks to review the decision of the then Court of Appeals (now Intermediate Appellate Court under BP 129) dated September 24, 1968, affirming the decision of the then Court of First Instance (now Regional Trial Court), the dispositive portion of which is as follows:

WHEREFORE, the judgment of the lower court insofar as it decrees the dismissal of the present petition for mandamus is hereby affirmed, without pronouncement as to costs (p. 50, rec.).

The facts of the case are as follows:

On January 15, 1960, private respondents (as members of the Board of Directors of the defunct National Resettlement and Rehabilitation Administration created under Republic Act No. 1160, approved June 18, 1954 — NARRA) approved the following resolution:

RESOLUTION NO. 13 (Series of 1960)

RESOLVED, as it is hereby resolved, to appoint Mr. Bruno 0. Aparri, as General Manager of the National Resettlement and Rehabilitation Administration (NARRA) with all the rights, prerogatives and compensation appurtenant thereto to take effect on January 16, 1960);

RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above appointment of Mr. Aparri (p. 2, rec.).

Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as Chairman of the NARRA Board, appointed petitioner Bruno O. Aparri as reflected in the following letter:

Manila, January 22, 1960

Mr. Bruno O. Aparri c/o NARRA, Manila

SIR:

You are hereby appointed as GENERAL MANAGER in the National Resettlement and Rehabilitation Administration (NARRA) with compensation at the rate of TWELVE THOUSAND (P12,000.00) PESOS per annum the appointment to take effect January 16,1960 . . . . REINSTATEMENT ... (p. 2, rec.).

The power of the Board of Directors of the NARRA to appoint the general manager is provided for in paragraph (2),Section 8, Republic Act No. 1160 (approved June 18, 1954), to wit:

Sec. 8. Powers and Duties of the Board of Directors. — The Board of Directors shall have the following powers and duties: ...

2) To appoint and fix the term of office of General Manager ..., subject to the recommendation of the Office of Economic Coordination and the approval of the President of the Philippines, .... The Board, by a majority vote of all members, may, for cause, upon recommendation of the Office of Economic Coordination and with the approval of the President of the Philippines, suspend and/or remove the General Manager and/or the Assistant General Manager (p. 46, rec., emphasis supplied).

On March 15, 1962, the same Board of Directors approved the following resolution:

Public Officers and Election Laws 1

RESOLUTION NO. 24 (Series of 1962)

WHEREAS, the Chairman of the Board has transmitted to the Board of Directors the desire of the Office of the President Malacanang, Manila, to fix the term of office of the incumbent General Manager up to the close of office hours on March 31, 1962, in accordance with the provision of Section 8, sub-section 2 of R.A. No. 1160;

NOW, THEREFORE, BE IT RESOLVED, as it is hereby resolved, that the Board of Directors hereby fix, as it is hereby fixed, the term of office of the incumbent General Manager of the National Resettlement and Rehabilitation Administration (NARRA) to March 31, 1962 (pp. 6-7, rec., emphasis supplied).

Petitioner filed a petition for mandamus with preliminary injunction with the then Court of First Instance of Manila on March 29, 1962. The petition prayed to annul the resolution of the NARRA Board dated March 15, 1962, to command the Board to allow petitioner to continue in office as General Manager until he vacates said office in accordance with law and to sentence the private respondents jointly and severally to pay the petitioner actual damages in the sum of P95,000.00, plus costs.

On August 8, 1963, when the case was still pending decision in the lower court, Republic Act No. 3844, otherwise known as the Agricultural Land Reform Code, took effect. The said law abolished the NARRA (Sec. 73, R.A. 3844) and transferred its functions and powers to the Land Authority. On October 21, 1963, the then Court of First Instance of Manila rendered judgment, finding "that this case has become academic by reason of the approval of the Agricultural Land Reform Code (Republic Act No. 3844) and thereby dismissing the instant petition without pronouncement as to costs" (p. 5, rec.).

On appeal to the then Court of Appeals, the appellate tribunal speaking through then Mr. Justice Antonio C. Lucero, affirmed the decision of the lower court. in dismissing the petition for mandamus. Pertinent provisions of the decision are as follows:

xxx xxx xxx

In the light of the foregoing facts, it is evident that Bruno O. Aparri accepted the position of General Manager without fixed term and his appointment is, in essence, terminable at the pleasure of the appointing power which, in this case, is the Board of Directors. Where, as in the case at bar, the appointing officer, that is, the Board of Directors, had fixed the term of office of the incumbent Manager to end on March 31, 1962, the replacement of Bruno O. Aparri is not removal but by reason of the term of his office which is one of the recognized modes of terminating official relations.Considering that the term of office of the General Manager of the NARRA is not fixed by law nor has it been fixed by the Board of Directors at the time of his appointment although it had the power to do so, it is obvious that the term of office of herein petitioner Bruno O. Aparri expired on March 31, 1962 and his right to hold the said office was thereby extinguished. In other words, Bruno O. Aparri cessation from office invokes no removal but merely the expiration of the term of office which was within the power of the Board of Directors to fix. Hence, Bruno O. Aparri continues only for so long as the term of his office has not ended (Alba vs. Hon. Jose N. Evangelists, 100 Phil. 683) [Decision of the Court of Appeals, pp. 48-49, rec., emphasis supplied].

The motion for reconsideration by petitioner in the then Court of Appeals was denied on January 10, 1969.

On January 20, 1969, the petitioner filed a petition for certiorari to review the decision of the then Court of Appeals dated September 24, 1968 (pp. 1-41, rec.). The same was initially denied for lack of merit in a resolution dated January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed on February 11, 1969, the petition was given due course (p. 66, rec.).

The only legal issue sought to be reviewed is whether or not Board Resolution No. 24 (series of 1962) was a removal or dismissal of petitioner without cause.

WE affirm. WE hold that the term of office of the petitioner expired on March 31, 1962.

A public office is the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercise by him for the benefit of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold a public office under our political system is therefore not a natural right. It exists, when it exists at all only because and by virtue of some law expressly or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no such thing as a vested interest or an estate in an office, or even an absolute right to hold office. Excepting constitutional offices which provide for special immunity as regards salary and tenure, no one can be said to have any vested right in an office or its salary (42 Am. Jur. 881).

The National Resettlement and Rehabilitation Administration (NARRA) was created under Republic Act No. 1160 (approved June 18,1954), which provides that:

Sec. 2. NATIONAL RESETTLEMENT AND REHABILITATION ADMINISTRATION — ... there is hereby created a corporation to be known as National Resettlement and Rehabilitation Administration hereafter referred to as "NARRA" to perform under the supervision and control of the President of the Philippines, through the Office of Economic Coordinator all the duties and functions of the Bureau of Lands as provided for in Commonwealth Act numbered Six Hundred and Ninety-one, as amended, and such other duties as are hereinafter specified in this Act. It shall be headed by a General Manager and an Assistant Manager who shall be appointed as hereinafter provided (emphasis supplied).

Public Officers and Election Laws 2

Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of Directors of the NARRA the power "to appoint and fix the term of office of the general manager ... subject to the recommendation of Economic Coordination and the approval of the President of the Philippines" (emphasis supplied).

By "appointment" is meant the act of designation by the executive officer, board or body, to whom that power has been delegated, of the individual who is to exercise the functions of a given office (Mechem op. cit., Sec. 102). When 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 confirmationof some other officer or body is required, the Commission can issue or the appointment is complete only when such assent or condition is obtained (People vs. Bissell, 49 Cal. 407). To constitute an "appointment" to office, there must be some open, unequivocal act of appointment on the part of the appointing authority empowered to make it, and it may be said that an appointment to office is made and is complete when the last act required of the appointing authority has been performed (Molnar vs. City of Aurora, 348 N.E. 2d 262, 38 III App. 3d 580). In either case, the appointment becomes complete when the last act required of the appointing power is performed (State vs. Barbour, 53 Conn. 76, 55 Am. Rep. 65).

The petitioner was appointed as general manager pursuant to Resolution No. 13 (series of 1960 — approved on January 15, 1960) of the Board of Directors. A careful perusal of the resolution points out the fact that the appointment is by itself incomplete because of the lack of approval of the President of the Philippines to such appointment. Thus, We note that Resolution No. 13 states:

xxx xxx xxx

... RESOLVED FURTHER, as it is hereby resolved, to inform the President of the Philippines of the above appointment of Mr. Aparri (p. 2, rec.).

Presumably, the Board of Directors of the NARRA expected that such appointment be given approval by the then President. Lacking such approval by the President as required by the law (par. 2, Sec. 8 of R.A. 1160), the appointment of petitioner was not complete. The petitioner can, at best, be classified as a de facto officer because he assumed office "under color of a known appointment or election, void because the officer was not eligible or because there was a want of power in the electing body, or by reasons of some defect or irregularity in its exercise, such ineligibility, want of power, or defect being unknown to the public" (State vs. Carroll, 38 Conn. 449, 9Am. Rep. 409).

However, such appointment was made complete upon approval of Resolution No. 24 (series of 1962-approved March 15, 1962) wherein the President submitted to the Board his "desire" to fix the term of office of the petitioner up to the close of office hours on March 31, 1962. The questioned resolution corrected whatever requisite lacking in the earlier Resolution No. 13 of the respondent Board. Resolution No. 24, approved by the respondent Board and pursuant to "the desire of the President" legally fixed the term of office of petitioner as mandated by paragraph 2, Section 8 of Republic Act 1160.

The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an office (Sueppel vs. City Council of Iowa City, 136 N.W. 2D 523, quoting 67 CJS OFFICERS, secs. 42, 54[1]). According to Mochem, the term of office is the period during which an office may be held. Upon the expiration of the officer's term, unless he is authorized by law to hold over, his rights, duties and authority as a pubic officer must ipso facto cease (Mechem, op. cit., Secs. 396-397). In the law on Public Officers, the most natural and frequent method by which a public officer ceases to be such is by the expiration of the term for which he was elected or appointed. The question of when this event has occurred depends upon a number of considerations, the most prominent of which, perhaps, are whether he was originally elected or appointed for a definite term or for a term dependent upon some act or event ... (Mechem op. cit., Sec. 384).

It is necessary in each case to interpret the word "term" with the purview of statutes so as to effectuate the statutory scheme pertaining to the office under examination (Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865, 65 C.2d N5). In the case at bar, the term of office is not fixed by law. However, the power to fix the term is vested in the Board of Directors subject to the recommendation of the Office of Economic Coordination and the approval of the President of the Philippines. Resolution No. 24 (series of 1962) speaks of no removal but an expiration of the term of office of the petitioner. The statute is undeniably clear. It is the rule in statutory construction that if the words and phrase of a statute are not obscure or ambiguous, its meaning and the intention of the legislature must be determined from the language employed, and, where there is no ambiguity in the words, there is no room for construction (Black on Interpretation of Laws, Sec. 51). The courts may not speculate as to the probable intent of the legislature apart from the words (Hondoras vs. Soto, 8 Am. St., Rep. 744). The reason for the rule is that the legislature must be presumed to know the meaning of words, to have used words advisedly and to have expressed its intent by the use of such words as are found in the statute (50 Am. Jur. p. 212).

Removal entails the ouster of an incumbent before the expiration of his term (Manalang vs. Quitoriano, 50 O.G. 2515). The petitioner in this case was not removed before the expiration of his term. Rather, his right to hold the office ceased by the expiration on March 31, 1962 of his term to hold such office.

WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED. WITHOUT COSTS.

SO ORDERED.

Concepcion, Jr., Guerrero, Abad Santos, De Castro and Escolin, JJ., concur.

Aquino, J., concur in the result.

Republic of the PhilippinesSUPREME COURT

Manila

Public Officers and Election Laws 3

EN BANC

G.R. No. L-23226 March 4, 1925

VICENTE SEGOVIA, petitioner-appellee, vs.PEDRO NOEL, respondent-appellant.

Provincial Fiscal Diaz for appellant.Del Rosario and Del Rosario for appellee.Vicente Zacarias as amicus curiae.

MALCOLM, J.:

The question to be decided on this appeal is whether that portion of Act No. 3107 which provides, that justices of the peace and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty- five years, should be given retroactive or prospective effect.

Vicente Segovia was appointed justice of the peace of Dumanjug, Cebu, on January 21, 1907. He continuously occupied this position until having passed sixty-five mile- stones, he was ordered by the Secretary of Justice on July 1, 1924, to vacate the office. Since that date, Pedro Noel, the auxiliary justice of the peace has acted as justice of the peace for the municipality of Dumanjug.

Mr. Segovia being desirous of avoiding a public scandal and of opposing physical resistance to the occupancy of the office of justice of the peace by the auxiliary justice of the peace, instituted friendly quo warranto proceedings in the Court of First Instance of Cebu to inquire into the right of Pedro Noel to occupy the office of justice of the peace, to oust the latter therefrom, and to procure reinstatement as justice of the peace of Dumanjug. To this complaint, Pedro Noel interposed a demurrer on the ground that it did not allege facts sufficient to constitute a cause of action, because Act No. 3107 was constitutional and because Mr. Segovia being sixty-five years old had automatically ceased to be justice of the peace. On the issue thus framed and on stipulated facts, judgment was rendered by Honorable Adolph Wislizenus, Judge of First Instance, overruling the demurrer, and in favor of petitioner and against respondent.

Proceeding by way of elimination so as to resolve the case into its simplest factors, it will first be noted that the petitioner abandons the untenable position, assumed by him in one portion of his complaint, to the effect that section 1 of Act No. 3107 is unconstitutional in that it impairs the contractual right of the petitioner to an office. It is a fundamental principle that a public office cannot be regarded as the property of the incumbent, and that a public office is not a contract.

It will next be noted that, while the respondent as appellant assigns three errors in this court, the first two relating to preliminary matters are ultimately renounced by him in order that there may be an authoritative decision on the main issue. The third error specified and argued with ability by the provincial fiscal of Cebu, is that the trial judge erred in declaring that the limitation regarding the age of justices of the peace provided by section 1 of Act No. 3107 is not applicable to justices of the peace and auxiliary justices of the peace appointed and acting before said law went into effect.

Coming now to the law, we find on investigation the original provision pertinent to the appointment and term of office of justices of the peace, in section 67 of Act No. 136, wherein it was provided that justices of the peace shall hold office during the pleasure of the Commission. Act No. 1450, in force when Vicente Segovia was originally appointed justice of the peace, amended section 67 of the Judiciary Law by making the term of office of justices and auxiliary justices of the peace two years from the first Monday in January nearest the date of appointment. Shortly after Segovia's appointment, however, the law was again amended by Act No. 1627 by providing that "all justices of the peace and auxiliary justices of the peace shall hold office during good behavior and those now in office shall so continue." Later amended by Acts Nos. 2041 and 2617, the law was ultimately codified in sections 203 and 206 of the Administrative Code.

Codal section 203 in its first paragraph provides that "one justice of the peace and one auxiliary justice of the peace shall be appointed by the Governor-General for the City of Manila, the City of Baguio, and for each municipality, township, and municipal district in the Philippine Islands, and if the public interests shall so require, for any other minor political division or unorganized territory in said Islands." It was this section which section 1 of Act No. 3107 amended by adding at the end thereof the following proviso: "Provided, That justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years." But section 206 of the Administrative Code entitled "Tenure of office," and reading "a justice of the peace having the requisite legal qualifications shall hold office during good behavior unless his office be lawfully abolished or merged in the jurisdiction of some other justice," was left unchanged by Act No. 3107.

A sound canon of statutory construction is that a statute operates prospectively only and never retroactively, unless the legislative intent to the contrary is made manifest either by the express terms of the statute or by necessary implication. Following the lead of the United States Supreme Court and putting the rule more strongly, a statute ought not to receive a construction making it act retroactively, unless the words used are so clear, strong, and imperative that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied. No court will hold a statute to be retroactive when the legislature has not said so. As our Civil Code has it in article 3, "Law shall not have a retroactive effect unless therein otherwise provided." (Farrel vs. Pingree [1888], 5 Utah, 443; 16 Pac., 843; Greer vs. City of Asheville [1894], 114 N.C., 495; United States Fidelity and Guaranty Co. vs. Struthers Wells Co. [1907], 209 U.S., 306; Montilla vs. Agustinian Corporation [1913], 24 Phil., 220; In re will of Riosa [1918], 39 Phil., 23.)

The same rule is followed by the courts with reference to public offices. A well-known New York decision held that "though there is no vested right in an office, which may not be disturbed by legislation, yet the incumbent has, in a sense, a right to his office. If that right is to be taken away by statute, the terms should be clear in which the purpose is stated." (People ex rel. Ryan vs. Green [1874], 58 N.Y., 295.) In another case, a new constitutional provision as to the advanced age which should prevent the incumbents of certain judicial offices from

Public Officers and Election Laws 4

retaining them was held prospective; it did not apply to persons in office at the time of its taking effect. (People vs. Gardner, 59 Barb., 198; II Lewis' Sutherland Statutory Construction, Chap. XVII, particularly pages 1161, 1162; Mechem on Public Officers, sec. 389.)

The case at bar is not the same as the case of Chanco vs. Imperial ( [1916], 34 Phil., 329). In that case, the question was as to the validity of section 7 of Act No. 2347. The law under consideration not only provided that Judges of First Instance shall serve until they have reached the age of sixty-five years, but it further provided "that the present judges of Courts of First Instance ... vacate their positions on the taking effect of this Act: and the Governor-General, with the advice and consent of the Philippine Commission, shall make new appointments of judges of Courts of First Instance ... ." There the intention of the Legislature to vacate the office was clearly expressed. Here, it is not expressed at all.

The language of Act No. 3107 amendatory of section 203 of the Administrative Code, gives no indication of retroactive effect. The law signifies no purpose of operating upon existing rights. A proviso was merely tacked on to section 203 of the Administrative Code, while leaving intact section 206 of the same Code which permits justices of the peace to hold office during good behavior. In the absence of provisions expressly making the law applicable to justices of the peace then in office, and in the absence of provisions impliedly indicative of such legislative intent, the courts would not be justified in giving the law an interpretation which would legislate faithful public servants out of office.

Answering the question with which we began our decision, we hold that the proviso added to section 203 of the Administrative Code by section 1 of Act No. 3107, providing that justices and auxiliary justices of the peace shall be appointed to serve until they have reached the age of sixty-five years, should be given prospective effect only, and so is not applicable to justices of the peace and auxiliary justices of the peace appointed before Act No. 3107 went into force. Consequently, it results that the decision of the trial court is correct in its findings of fact and law and in its disposition of the case.

Judgment affirmed, without costs. It is so ordered.

Villamor, Ostrand, Johns, and Romualdez, JJ., concur.Johnson, J., concurs in the result.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

DECISION

March 22, 1916

G.R. No. L-11315DIONISIO CHANCO, petitioner,vs.CARLOS IMPERIAL, respondent.

Delgado and Delgado for petitioner.Attorney-General Avance�a for respondent.

Moreland, J.:

This is an action to test the title to the office of judge of the Court of First Instance of the Eighth Judicial District, comprising the Provinces of Bataan and Zambales. The complainant alleges that on or about the 1st day of July, 1914, he was duly named and appointed judge of the Court of First Instance of the Eighth Judicial District of Philippine Islands, comprising the Provinces of Bataan and Zambales, by the Governor-General, by and with the advice and consent of the Philippine Commission; that he duly qualified and entered upon the discharge of the duties thereof on the said 1st day of July, 1914, in conformity with Act No. 2347 under which he was named; that the defendant has usurped, intruded into and taken possession of the said office of judge of the Court of First Instance of the Eighth Judicial District and is now exercising the functions of said office; that the plaintiff has not resigned his office, nor has he been removed therefrom.

The answer denies several of the allegations of the complaint and alleges as a special defense that the plaintiff on or before the 9th of October, 1915, completed his sixty-fifty year and that, by reason of section 7 of Act No. 2347, which provides that no person shall be capable of holding the office of judge of the Court of First Instance of the Philippine Islands after he has completed his sixty-fifth year, the said plaintiff, on the said 9th of October 1915, ipso facto ceased to be judge of the Court of First Instance of that district and that the office thereupon became vacant. The answer further alleges that the defendant was duly named and appointed judge of the Court of First Instance of the said Eighth Judicial District on the 19th day of October, 1915, by the Governor-General, by and with the advice and consent of the Philippine Commission, in place and stead of the said plaintiff; and that the defendant duly qualified as such judge and entered upon the discharge of the duties of his office and still continues therein.

The plaintiff demurred to the answer on the ground that it did not state facts sufficient to constitute a defense, the reason alleged therefore being that said section 7 of Act No. 2347 is incompatible with, and contrary to, the Act of Congress of July 1, 1902, and Act No. 136 of the

Public Officers and Election Laws 5

Philippine Commission, and is, therefore, null and void.

The only question presented to this court is that of whether or not section 7 of Act No. 2347 is in violation of, or contrary to, the Act of Congress of July 1, 1902. The claim that it is also in violation of Act No. 136 of the Philippine Commission is urged on the theory that the Act of Congress of July 1, 1902, ratified and made a part thereof Act No. 136 of the Philippine Commission; and that, therefore, any Act of the Philippine Legislature repugnant to Act No. 136 is an null and void as though it were repugnant to the Act of Congress of July 1, 1902, itself.

We do not believe the contention of the plaintiff can be sustained. The Supreme Court of the United States has that the Philippine Legislature has the same powers in the Philippine Islands, within the sphere in which it may operate, as Congress itself (Tiaco vs. Forbes, 228 U. S., 549); and it has strongly intimated that when an Act of the Philippine Legislature is reported to Congress and has not been annulled by that body it is a lawful and valid Act. By this it is not meant to say, as we understand it, that the Philippine Legislature can pass a valid law which is in violation of the Act of Congress of July 1, 1902, or of any other Act of Congress; or that it can legislate in a field which Congress has already occupied by appropriate legislation (U. S. vs. Bull, 15 Phil. Rep., 7). In the Bull case we held that an Act of the legislative authority of the Philippine Government which has not been expressly disapproved by Congress is valid, unless its subject-matter has been covered by congressional legislation or its enactment forbidden by some provision of the Organic Law; and that the reservation by Congress (Act of July 1, 1902) of the power to suspect valid Acts of the Philippine Commission and Legislature does not operate to suspend such Acts until approved by Congress, or when approved, make them laws of Congress. They are valid Acts of the Government of the Philippine Islands until annulled.

It is maintained by plaintiff, however, that Congress has already legislated on the question of the qualifications of judges of the Court of First Instance of the Philippine Islands, and that the Philippine Legislature is, therefore, acting beyond its authority is dealing with the same subject-matter. That provision of the Act of Congress of July 1, 1902, on which plaintiff relies is the latter part of section 9. It provides:

. . . The judges of the Court of First Instance shall be appointed by the Civil Governor, by and with the advice and consent of the Philippine Commission: . . . .

Plaintiff argues that, at the time this Act went into effect, Act No. 136 of the Philippine Commission was in existence, which defined the qualifications which a person must have in order to be eligible to the office of judge of the Court of First Instance; that that portion of Act No. 136 must be held to have been impliedly adopted by Congress, inasmuch as it must be considered that it acted in view of the conditions existent at that time. This appears to us to be going a long way. It seems to have been the intention of Congress to leave that question untouched and open. This is apparent from the wording of the section itself, as it is entirely devoid of any word or phrase from which such an inference can be drawn; and it may also be inferred from the fact that Congress, in the Act referred to, in dealing with the jurisdiction of the courts of the Philippine Islands, made express reference to the jurisdiction they then had under existing laws, and established that jurisdiction so that it could not thereafter be changed except by way of enlargement. If Congress had intended by the Act of July 1, 1902, to fix the qualifications of judges of the Court of First Instance it would undoubtedly have taken the same course to do so that it did with respect to the jurisdiction of the courts, namely, by express reference to existing laws which fixed the qualifications which the candidate must possess. Congress did not do so; and we are unable to find any basis upon which we can hold that it intended to do so. Moreover, prescribing the method of appointment does not involve necessarily or even remotely the qualifications of the judge. It is true that the power of appointment is closely connected with the qualifications of the person to be appointed; but they are not so closely connected that it may be said that when Congress enters one field it thereby excludes the Philippine Legislature from the other. We believe that the two questions are so separate, both by nature and by form, that the fact that Congress has legislated with regard to the one does not thereby prohibit the Philippine Legislature from legislating as to the other.

Although the question is not raised or argued, we have not overlooked the importance of the fact that the Governor-General is in a sense the direct representative of the American Government in the Philippine Islands, that his appointment comes from the President of the United States, by and with the advice and consent of the Senate, and that some of his powers have been fixed by Congress; and that accordingly, the Philippine Legislature is approaching a situation of some delicacy when it seeks to legislate with respect to his office or his powers and functions. We do not believe, however, that the case before us presents such features as would necessitate a discussion of the various questions which might arise in connection with legislation of that character.

It must be held, therefore, that the plaintiff on having completed his sixty-fifth year ceased to be judge of the Court of First Instance of that district by virtue of the provisions of section 7 of Act No. 2347 heretofore referred to, which is set out in full in the footnote;1 that the defendant was duly appointed Judge of the Court of First Instance of the Eighth Judicial District; that he duly qualified and entered upon the discharge of the duties of his office and now continues therein; and that he is entitled to retain said office as against plaintiff.

The demurrer to the answer is, therefore, overruled and the cause will proceed as provided by law. So ordered.

Arellano, C. J., Torres, and Trent, JJ., concur.

Johnson, J., reserves his vote.

Araullo, J., dissents.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

Public Officers and Election Laws 6

G.R. No. L-13744 November 29, 1918

JOSE LINO LUNA, petitioner-appellant, vs.EULOGIO RODRIGUEZ, respondent-appellant; SERVANDO DE LOS ANGELES, respondent.

Ramon Diokno and Agapito Ygnacio for petitioner.Sumulong & Estrada for respondent.

JOHNSON, J.:

It appears from the record that an election for the office of governor of the Province of Rizal was held on the 6th day of June, 1916. At said election Jose Lino Luna, Eulogio Rodriguez and Servando de los Angeles were candidates for said office. The election was closed, the votes cast in the various municipalities were counted, and a return was made by the inspectors of said municipalities to the provincial board of canvassers, who, after a canvass of said returns, proclaimed the following result:

(a) That Eulogio Rodriguez received 4,321 votes; (b) Jose Lino Luna 4,157; (c) Servando de los Angeles 3,576 votes; and (d) that Eulogio Rodriguez, having received a plurality of said votes, was duly elected governor of said province.

Against said proclamation Jose Lino Luna presented a protest in the Court of First Instance. Upon said protest issue was joined, hearing was had and a decision was rendered which was, on appeal, set aside and a new trial ordered. (Lino Luna vs. Rodriguez and De los Angeles, 37 Phil. Rep., 186.) Complying with said order, a new trial was had at which the Honorable William E. McMahon, judge, presided. Additional evidence was adduced. After a consideration of all of the facts and the evidence adduced at both trials, Judge McMahon reached the conclusion that the ballots cast for the various candidates were as indicated in the returns of the inspectors of the various municipalities except those in the municipality of Taytay and Binangonan. In the municipality of Taytay, Judge McMahon found from the evidence that 50 ballots cast for Eulogio Rodriguez should not have been counted for him, and ordered that number of votes deducted from his total. In the municipality of Binangonan, Judge McMahon found that the inspectors did not close the polls at 6 o'clock p.m., and that a large number of persons voted after that time, and directed that the total vote of Eulogio Rodriguez should be reduced by the number of such votes, without ascertaining how many had been cast for Rodriguez and how many for Luna. By deducting the said votes in the municipality of Taytay and those cast after six o'clock p.m. in the municipality of Binangonan, Judge McMahon concluded that Jose Lino Luna had received a plurality of the legal votes cast at said election and ordered the provincial board of canvassers to correct its canvass accordingly. From that conclusion both parties to the contest appealed to this court and made several assignments of error.

Considering all of said assignments of error, we find that they present, in fact, but three questions:

(1) What is the effect of holding the polls open after the hour fixed for closing the election?

(2) What is the effect of assistance rendered by the inspectors of the election to incapacitated persons, without first requiring of such persons an oath to the effect that they are incapacitated to prepare their own ballots?

(3) What is the effect of a failure on the part of the authorities to provide proper voting booths?

With reference to the first question, the law provides that "at all the elections held under the provisions of this Act the polls shall be open from seven o'clock in the morning until six o'clock in the afternoon, during which period not more than one member of the board of inspectors shall be absent at one time, and then for not to exceed twenty minutes at one time." (Sec. 21 of Act No. 1582; sec. 11 of Act No. 2045; sec. 543 of Act No. 2657, and sec. 445 of Act No. 2711.) Are the provisions with reference to the time of opening and closing the polls mandatory? It is admitted in the present case that the polls were not closed at 6 p.m. The record shows that at 6 p.m. a large number of voters had not yet been able to vote and that, for that reason, an agreement was made between some of the candidates for office who were present and the board of inspectors, to the effect that the polls should be kept open in order that such electors might vote. No objection whatever to that agreement was made by any person at that time.

One of the reasons why all of the voters of the municipality had not voted before 6 p.m. was that the board of inspectors failed to have the list of voters properly prepared at 7 a.m., and therefore but few of the voters were able to vote before eleven or eleven-thirty in the morning. That failure, on the part of the board of inspectors, made it impossible for many of the voters of the municipality of Binangonan to vote before the regular time for the closing of the polls.

Shall the ballot of an innocent voter, who is prevented, through no fault of his, from casting the same before 6 p.m. be annulled for the simple reason that the polls were kept open, after the hour designated by the law, for the purpose of giving such voter an opportunity to vote?

Experience and observation has taught legislatures and courts that, at the time of a hotly contested election, the partisan spirit of ingenious and unscrupulous politicians will lead them beyond the limits of honesty and decency and by the use of bribery, fraud and intimidation, despoil the purity of the ballot and defeat the will of the people at the polls. Such experience has led the legislatures to adopt very stringent rules for the purpose of protecting the voter in the manner of preparing and casting his ballot to guard the purity of elections. (Paulino vs.Cailles, 37 Phil. Rep., 825.)

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The infinite ingenuity of violent partisan spirit in evading the rules and regulation of elections and the use of bribery, fraud and intimidation has made necessary the establishment of elaborate and rigid rules and regulations for the conduct of elections. The very elaborateness of these rules has resulted in their frequent violation and the reports of the courts are replete with cases in which the result of an election has been attacked on the ground that some provision of the law has not been complied with. Presumably, all the provisions of the election laws have a purpose and should therefore be observed. (Detroit vs. Rush, 82 Mich., 532; 10 L. R. A., 171; 9 R. C. L., 1091; Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72.)

It has been announced in many decisions that the rules and regulations, for the conduct of elections, are mandatory before the election, but when it is sought to enforce them after the election they are held to be directory only, if that is possible, especially where, if they are held to be mandatory, innocent voters will be deprived of their votes without any fault on their part. (Patton vs. Watkins, 131 Ala., 387; 90 Am. State Rep., 43, 72; Jones vs. State, 153 Ind., 440.)

In the case of Gardiner vs. Romulo (26 Phil. Rep., 521), we held that when the Election Law does notprovide that a departure from a prescribed form will be fatal and such departure has been due to an honest mistake or misrepresentation of the Election Law, and such departure has not been used as a means for fraudulent practices and it is clear that there has been a free and honest expression of the popular will, the law will be held to be directory and such departure will be considered a harmless irregularity. However, the irregularities may be so numerous as not to be attributed to ignorance or honest mistake, but to a design to defeat the will of the voters or to such careless disregard of the law as to amount not only to laches but to fraudulent intent. In such cases, the election officers should be punished, the election should be declared null and a new election held.

It has been held, therefore, very generally, that the provisions of a statute as to the manner of conducting the details of an election are not mandatory, but directory merely, and irregularities, in conducting an election and counting the votes, not proceeding from any wrongful intent and which deprives no legal voter of his vote, will not vitiate an election or justify the rejection of the entire votes of a precinct. (Behrensmeyer vs. Kreitz, 135 Ill., 591; Hankey vs. Bowman, 82 Minn., 328; Sprague vs. Norway, 31 Cal., 173; Webre vs. Wilton, 29 La. Ann., 610.)

The purpose of an election is to give the voters a direct participation in the affairs of their government, either in determining who shall be their public officials or in deciding some question of public interest; and for that purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their ballot. When that is done and no frauds have been committed, the ballots should be counted and the election should not be declared null. Innocent voters should not be deprived of their participation in the affairs of their government for mere irregularities on the part of the election officers, for which they are in no way responsible. A different rule would make the manner and method of performing a public duty of greater importance than the duty itself. (Loomis vs.Jackson, 6 W. Va., 613.)

The errors and irregularities which warrant the rejection of ballots and the annulment of an election and thus deprive lawful voters of their legal right to vote, should be such as to fully justify that result. (The People vs. Cook, 8 N. Y., 67; 59 Am. Dec., 451.) It has been held that even great irregularities on the part of election officers will not of necessity vitiate an election, where no fraud is committed or attempted, or no illegal vote was polled was no legal voter was deprived of his vote. (Morris vs. Vanlaningham, 11 Kan., 269.)

No complaint is made that any fraud was committed nor that any person voted who had no right to vote, by reason of the fact that the polls were kept open after the hour fixed by the law. It is admitted that the polls were kept open after the hour, by the consent of all parties concerned, for the reasons and purposes above indicated. In view of such facts, should the vote of the innocent voter be annulled and he thereby deprived of his participation in the affairs of the government when he was guilty of no illegal act? If the inspectors may, for one reason or another, prevent the opening of the polls or delay the commencement of the voting until 11 o'clock in the morning and then close the polls in the evening so as to prevent all those who desire to vote from voting, without incurring criminal liability for a violation of the election laws, the same motives will induce them to delay the opening of the polls until later and thus prevent any to vote except those whom they desire.

The polls should be opened and closed in strict accord with the provisions of the law. Voters who do not appear and offer to vote within the hours designated by the law should not be permitted to vote after the time for closing the polls has arrived. Upon the other hand, if the voter is prevented, during the voting hours, from voting, and is not permitted to vote by reason of the failure of the inspectors to do their duty, then, certainly, in the absence of some fraud, neither such votes nor the entire vote of the precinct should be annulled simply because some votes were cast after the regular hour. (People vs. Prewett, 124 Cal., 7; Packwood vs. Brownell, 121 Cal., 478; Pickett vs.Russell, 42 Fla., 116.)

The decisions in the various States of the United States are not uniform upon the effect of a failure to open and close polls at the time specified by the law. In some States such a provision has been held to be mandatory, in others directory. The decisions seem to be based upon the language of the particular statutes discussed.

We are not inclined to the belief that the legislature intended that a failure to comply with the law in this jurisdiction should render the entire election void, nor nullify the votes cast after the period mentioned in the law, unless the polls were kept open after the hour for the purpose of permitting some fraud to be committed, or for the purpose of permitting some person to vote who had not appeared during the regular voting hours.

The section of the law which we are discussing provides that 'not more than one member of the board of inspectors shall be absent at one time and then for not to exceed twenty minutes at one time." Suppose that the evidence showed that two of the inspectors were absent at one time and for a period longer than twenty minutes, would the courts be justified in holding that the entire election was void, in the absence of fraud, for the reason? There is little justification for holding that one provision of said section is mandatory and the other directory.

Our conclusion upon the first question, in view of the foregoing, is that in the present case there seems to be no justification, under the facts, there being no fraud committed, for annulling the votes of innocent voters who were permitted by the election inspectors to cast

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their votes in a legal manner after the regular hour for closing the polls. In this conclusion, however, we do not desire to be understood to have decided that in no case should the courts not annul and set aside an election, where fraud is clearly proved, for a violation of the section under discussion. When the polls are kept open after the hour prescribed by the law for the purpose of defeating the will of the people, such a violation of the law should result in annulling and setting aside the election of that precinct. No such facts exist in the present case. It is true, perhaps, that a number of the votes cast after the hour for closing the polls were sufficient to change the result of the election, but the result would have been the same had those same voters been permitted to vote, except for the negligence of the inspectors, during the regular hours for voting. There seems to be no more reason for annulling the votes cast, after the hour for closing the election, than for annulling the election for the reason that the inspectors failed to provide the means for voting at the time fixed for opening the polls in the morning.

We are firmly of the opinion that instead of depriving the innocent voters of their right to participate in the affairs of their government for irregularities committed by the election inspectors, the latter should be proceeded against in a criminal action for failure, on their part, to comply with the law and be punished in accordance with section 29 of Act No. 1592; section 2632 of Act No. 2657 and section 2639 of Act No. 2711.

The various and numerous provisions of the Election Law are adopted to assist the voters in their participation in the affairs of the government, and not to defeat that object. When the voters have honestly cast their ballots, the same should not be nullified simply because the officers appointed, under the law to direct the election and guard the purity of elections, have not done their duty. The law provides a remedy, by criminal action, against them. They should be prosecuted, and the will of the honest voter, as expressed through his ballot, should be protected and upheld.lawphi1.net

It may be noted in this relation that, under the law, the polls are kept open from 7 a.m. until 6 p.m. or, for a period of eleven hours only. In the municipality of Binangonan the record shows that there were 375 analfabetos(illiterate persons) and 164 other voters. The law requires an analfabeto to take an oath and that the oath shall be filed. Naturally the inspectors require some time in (a) ascertaining whether or not the voter is in fact ananalfabeto; (b) in administering, preparing, signing and filing the oath. Suppose one minute only is allowed for that work. Then two inspectors must accompany such a voter to the booth, there assist him in preparing his ballot and then return to their position occupied by them as inspectors. We do not think that work could be accomplished in less than another minute and it would more than likely occupy nearer two minutes. But admitting that it could be accomplished in one minute, we have, at least, two minutes occupied by two inspectors for each analfabeto. There being 375 analfabetos, it would require 750 minutes to vote, or 12 ½ hours. If the inspectors had strictly complied with the law, not all of the analfabetos of said municipality could have voted in the eleven hours provided by the law, not to say anything of the time necessarily occupied with the 164 other voters of the municipality who would, at least, occupy one minute each of the time of the inspectors, or nearly 2 1/2 hours more. With reference to this particular question of the time necessary for each analfabeto to vote, some of the judges have estimated that it would take, at least, five minutes of the time of the inspectors for each analfabeto. (Hontiveros vs. Mobo, R. G. No. 13959, p. 230, post.)

From the foregoing, it was practically an impossibility for all of the voters of said municipality to have voted in the eleven hours prescribed by the law even though the polls had been opened promptly at 7 a.m. instead of at nearly 11 a.m. The above time is computed upon the theory that no time whatever is lost, that the voters arrive one immediately after another and that no time is lost waiting for the arrival of the voters.

With reference to the second question above presented, the law provides that:

A voter otherwise qualified who declares that he can not write, or that from blindness or other physical disability he is unable to prepare his ballot, may make an oath to the effect that he is so disabled and the nature of his disability and that he desires the inspectors to assist him in the preparation of such ballot. The board shall keep a record of all such oaths taken and file the same with the municipal secretary with the other records of the board after the election. Two of the inspectors, each of whom shall belong to a different political party, shall ascertain the wishes of the voter, and one of them shall prepare the ballot of the voter in proper form according to his wishes, in the presence of the other inspector, and out of view of any other person. The information this obtained shall be regarded as a privileged communication. (Section 12, Act No. 2045; section 550, Act No. 2657; section 453, Act No. 2711.)

Said quoted section provides the method by which a person who cannot prepare his ballot may be assisted. The conditions are:

(a) That he must make an oath to the effect that he is disabled and the nature of his disability together with the fact that he desires the inspectors to assist him in the preparation of his ballot;

(b) That a record of said oath shall be filed with the municipal secretary with the other records of the board of inspectors after the election; and

(c) When said oath is taken, then two of the inspectors, each of whom shall belong to different political party, may assist him in the preparation of his ballot.

In view of said conditions, what shall be the effect of a failure to comply therewith? Suppose, for example, that the voter is incapacitated; that the board of inspectors are fully aware of that fact; that they failed to require of him the oath; that they failed to keep on file the oath taken, or that one inspector only assisted said voter in the preparation of his ballot, or that two assisted him which belonged to the same party, shall the ballot of such an incapacitated person be rejected? Shall all of the votes of the precinct be nullified because of the failure of the inspectors to comply strictly with the letter of the law?

We held in the case of Paulino vs. Cailles (R. G. No. 12753, 37 Phil. Rep., 825) that the ballots of incapacitated persons who voted without taking the oath or were assisted by one inspector alone, or by two belonging to the same party, should not be counted if such

Public Officers and Election Laws 9

ballots could be identified. We further held that, in the absence of fraud, all of the ballots of the precinct should not be invalidated by the mere fact that the inspectors did not comply with their duty. Innocent voters should not be deprived of their participation in an election for a violation of the law for which they were in no way responsible and which they could not prevent.lawphil.net

The incapacitated persons mentioned in said section above noted are usually persons who are unable to acquaint themselves with the provisions of the law. They are, therefore, absolutely dependent upon the advice and counsel of others. Generally, they have no idea whatever as to the form and requirements in casting their ballots. Their ignorance, however, does not relieve them from their responsibility under the law, nor from the effect of their failure to comply therewith. (Manalo vs. Sevilla, 24 Phil. Rep., 609; Gardiner vs. De Leon, R. G. No. 12382 decided March 15, 1917, not published; Paulino vs. Cailles, R. G. No. 12763, 37 Phil. Rep., 825.)

The law intended that those votes only who are incapacitated in some way should be assisted. To insure a compliance with the law an oath of incapacity is required. To prove that only such persons have received assistance, the election board is required to keep a record of such oath. To guarantee that such voters should not be imposed upon, the law wisely provided that two inspectors of different political faith should assist them. Upon the other hand, if the inspectors have failed or declined to perform a duty or obligation imposed upon them by the Election Law, they may be punished.

The record shows that in many of the municipalities of the Province of Rizal, during the election in question, a great many incapacitated persons voted without taking the oath required and were assisted by one inspector only in the preparation of their ballots. But, in view of the fact that such ballots have not been identified they cannot be rejected. The voter cannot be punished. The remedy is by a criminal action against the inspectors for a failure to comply with the law. (Section 29, Act No. 1582; section 2632, Act No. 2657; section 2639, Act No. 2711.)

Said section (2632) provides, among other things, that any member of a board of registration, or board of inspectors, or board of canvassers who willfully declines or fails to perform any duty or obligation imposed by the Election Law, shall be punished by imprisonment for not less than one month nor more than one year, or by a fine of not less than P200 nor more than P500 or both.

With reference to the third question above indicated, relating to what is the effect of a failure on the part of the authorities to provide proper voting booths, it may be said that we have held in the case of Gardiner vs.Romulo (26 Phil. Rep., 521) that the requirements of the Election Law providing for the location of polling stations and the construction of booths and guard rails for the latter may be departed from in some particulars and yet preserve, in substantial form, the secrecy which the law requires. But the failure to provide doors and guard rails for the booths and the placing of the writing shelf so that it faces the side instead of the rear of the booths are, combined, a fatal disregard of the law, inasmuch as such an arrangement does not offer, even in substantial form, the secrecy and seclusion which, according to the purpose and spirit of the Election Law, is its most mandatory requirement.

Section 9 of Act No. 1582, as amended by section 512 of Act No. 2657 and section 415 of Act 2711, provides that there shall be in each polling place, during each election, a sufficient number of voting booths, not less than one for every fifty voters, in the election precinct. Said section further provides how such voting booths, not less than one every fifty voters, in the election precinct. Said section further provides how such voting booths shall be constructed. The purpose of said provisions is to furnish each voter an opportunity to prepare his ballot in secrecy. Suppose the board of inspectors does not prepare the voting booth in exactly the form prescribed by law, what shall be the effect? Support, the example, that they construct a booth less than one meter square as is provided by the law but yet sufficiently large to enable the voter to enter and to prepare his ballot in secrecy; or suppose that the door swinging outward to the booth shall extend to the floor instead of within fifty centimeters of the floor; or suppose that the shelf upon which the voter shall prepare his ballot shall be less than thirty centimeters wide, shall the entire election be declared null and void for such failures when it is admitted and proved, beyond question, that even with such defects in the fulfillment of the requirements of the election law they were in fact constructed in a manner which provided the voter a complete opportunity to prepare his ballot in absolute secrecy? While there is no provision in the law, relating to the construction of booths, they shall be constructed in such manner as to afford the voter an opportunity to prepare his ballot in secret, that must be the primary and ultimate object of having the booths constructed in the manner indicated.

When we held that the law requiring the preparation of the booths in a particular manner was mandatory, we did not mean to hold that unless they were prepared in exact conformity with the law, that the election would be nullified. We simply held that if they were not constructed in a manner which afforded the voters an opportunity to prepare their ballots in secret, the election would be declared null and void on that account. If, however, upon the other hand, the booths were so constructed, even though not in strict accord with the provisions of the law, as to afford each voter an opportunity to prepare his ballot in secret, the election should not be declared null and void. Secrecy is the object of the booth. An opportunity to prepare his ballot in private is the purpose of the provision. When the booth affords that protection, the purpose of the law is fulfilled. To hold otherwise — to establish a different rule — would make the manner of performing a public duty more important than the performance of the duty itself.

In the present case, while there is some conflict in the evidence, and while the proof clearly shows that the booths were not constructed in strict accordance with the provisions of the law, we are of the opinion that a large preponderance of the evidence shows that the booths were constructed (defectively perhaps) in a manner which afforded each voter an opportunity to prepare his ballot in absolute secrecy. That being true, we find no reason for changing or modifying the conclusion of the lower court.

The defendant-appellant alleges, and attempts to establish the fact, that in the municipality of San Felipe Nery many irregularities were committed which should invalidate the election. For example, he alleges the different columns of the polling list were not properly filled. Even granting that fact, the voter was in no way responsible. The voter not being responsible, his ballot should not be nullified on that account. Filling the different columns of the polling list is a duty imposed upon the election officers. If they fail to perform their duty they are responsible; and as we have frequently said, the ballots of innocent voters should not be nullified for a failure on the part of election officers to perform their duty in accordance with the provisions of the law. The remedy is a criminal action against the inspectors if they have violated the law and not to nullify the votes of innocent voters.

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The defendant-appellant further alleges that in the municipality of San Felipe Nery, a number of voters voted who were not residents of said municipality. That question was presented to the court below, and upon a full consideration he refused to nullify the election in said municipality upon the grounds alleged. While it is true that the proof shows that some grave irregularities were committed by the board of inspectors, we are not persuaded that the evidence is sufficient to justify this court in nullifying the entire vote of said municipality. In view of that conclusion, we deem it unnecessary to discuss the other allegations of the defendant-appellant with reference to the striking out of certain allegations in his answer.

The lower court, after hearing the evidence and after examining the ballots cast in the municipality of Taytay, found that 50 ballots which had been counted for the defendant-appellant should not be counted for him and ordered that the total vote of the defendant-appellant should be reduced by that number. The defendant-appellant in fact admits that the said 50 votes should be deducted from his total vote. In view of that admission of the defendant-appellant, we deem it unnecessary to discuss the reasons therefor.

Upon the various errors assigned, our conclusions are:

(1) That the total votes cast in the municipality of Binangonan should be counted for the respective candidates; that for the special reason given, the board of inspectors was justified in keeping the polls open after the hour for closing. But this conclusion must not be interpreted to mean that under other circumstances and other conditions, where the polls are kept open after the hour for fraudulent purposes, that such act on the part of the inspectors might not nullify the entire election (Gardiner vs. Romulo, 26 Phil. Rep., 521);

(2) That while it is irregular for the board of inspectors to permit incapacitated voters to vote without taking the oath and for one inspector only to assist such voters, yet the ballots of the innocent voters should not be nullified on that account; that the ballots of such persons only should be annulled when identified;

(3) That inasmuch as the voting booths in the municipality of Antipolo were prepared in a manner and form which permitted the voter to prepare his ballot in absolute secrecy, the vote of that municipality should not be nullified; and

(4) That the judgment of the lower court reducing the total vote of the defendant-appellant by fifty identified fraudulent ballots counted for him, in the municipality of Taytay, should be affirmed.

As a result of the count of the ballots, cast in the various municipalities by the provincial board of inspectors, Eulogio Rodriguez received 4,321 votes, Jose Lino Luna received 4,157 votes and Servando de los Angeles received 3,576 votes. Servando de los Angeles did not protest the election. From all of the foregoing, the total votes of Eulogio Rodriguez must be reduced by 50 votes, leaving him a total of 4,271 only, or a clear majority of 114 votes.

Therefore, with the modification herein indicated, the judgment of the lower court is affirmed as modified, and it is hereby ordered and decreed that the record be immediately returned to the lower court with direction that a judgment be entered directing and ordering the provincial board of inspectors to amend its count accordingly.

It is so ordered, without any finding as to costs.

Arellano, C.J., Torres, Street, Malcolm and Avanceña, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-28715 September 28, 1972

MANUEL R. BARTE, petitioner-appellee, vs.DEMETRIO A. DICHOSO and JUAN VILLEGAS (in their capacities as City Treasurer and Auditor, respectively), respondents-appellants.

Luciano M. Maggay and Surtida Law Office for petitioner-appellee.

Office of the Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de Castro and Solicitor Pedro A. Ramirez for respondents-appellants.

Jose W. Diokno as amicus curiae.

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FERNANDO, J.:p

It is a novel question that was raised by petitioner, now appellee, Manuel R. Barte, in this mandamus-proceeding. Admittedly, he was designated to the position of Acting Vice-Mayor of Naga City under Commonwealth Act No. 588. 1 There is no question either that there was no renewal of such designation after the adjournment of Congress. Nonetheless, he would, notwithstanding the literal language of the law providing that such designation "shall in no case continue beyond the date of the adjournment of the regular session" of the National Assembly then, of the Congress of the Philippines now, claim a legal right to continue in such office, thus laying a basis for this suit to compel respondents Demetrio Dichoso and Juan Villegas, the City Treasurer and Auditor, respectively, of such city, to pay him his salary. Surprisingly, the lower court acceded to his plea, brushing aside the constitutional and statutory objections raised by respondents. Hence this appeal. As will be made clear, a different disposition of the petition is called for if deference is to be paid to what is ordained in both the fundamental law and this applicable legislation.

The facts were stipulated as follows: "1. The petitioner Manuel Barte is a duly elected councilor for and in the City of Naga who was extended an ad interim appointment by President Macapagal ... vice Vicente P. Sibulo who assumed the position of Mayor vacated by Congressman Ramon Felipe, Jr.; 2. The petitioner took his oath of office as Vice Mayor on October 11, 1965 ... . Session of Congress adjourned January 22, 1966. The ad interim appointment was bypassed; 3. On February 25, 1966, Assistant Executive Secretary Flores Bayot sent a telegram ... to respondent Demetrio Dichoso informing him that the appointment of the petitioner was terminated January 22, 1966; 4. On April 4, 1966, President Marcos extended to the petitioner an appointment designating said petitioner as Acting Vice Mayor of Naga ... and took the oath of office on April 14, 1966 ... . Thereafter, the petitioner performed the duties and functions of Acting Vice Mayor; 5. On May 26, 1966 the respondents sent a telegraphic inquiry to the Executive Secretary regarding the status of Barte's appointment inasmuch as Congress adjourned May 19, 1966 for purposes of paying the said petitioner ... and on May 31, 1966, the Assistant Executive Secretary replied also by telegram ... informing the respondents that Barte's appointment is deemed bypassed and a new designation is under consideration; 6. On June 3, 1966, the City Fiscal gave the opinion ..., upon Barte's request, and opined that Barte's appointment is still valid and subsisting notwithstanding the telegram of the Assistant Executive Secretary ...; 7. On June 21, 1966 on the strength of the telegraphic information received ... the respondent Treasurer sent a letter ... to the petitioner with an in closed voucher ... informing the latter that he can no longer pay the salary of the petitioner as Acting Vice Mayor; 8. On June 21, 1966 because of the refusal of the respondents to pass Exhibit H in audit and payment, the petitioner referred the matter to Mr. Ros Bonete, Division Auditor for Southern Luzon ... attaching to the said letter the City Fiscal's opinion ...; 9. On same date, June 21, 1966 respondent auditor, in his first indorsement ... to the Division Auditor, recommended the payment of petitioner's claim for salary and services rendered as Vice Mayor; 10. The Division Auditor, on June 28, 1966, indorsed favorably the petitioner's claim ... to the Auditor General, Manila, stating that he is in full accord with the opinion of the City Fiscal; 11. On February 17, 1967, the Assistant Executive Secretary sent a telegram ... to the respondent auditor and at the same time, sent a letter to the City Counsel of Naga informing the latter that the petitioner's acts as Vice Mayor after May 19, 1966 are illegal ...; 12. On March 1, 1967, the Assistant Executive Secretary again sent another telegram to the respondents informing the latter that he furnished the City Council copy of Exhibit 8, ...; 13. The respondent Treasurer denied payment of the salary of the petitioner stated in the voucher ...; 14. After eight (8) months and no action was received on his claim for salary, the petitioner filed the present suit." 2

On the above facts, the lower court decided in favor of petitioner in a decision of June 23, 1967. In its dispositive portion, it held "that the petitioner's appointment as Acting Vice Mayor is still valid and subsisting notwithstanding the adjournment of Congress on May 19, 1966; and such, he is entitled to all the honors, salaries and emoluments thereto appertaining. The respondents are enjoined herein to pass in audit and effect the payment of petitioner's salary for the services he has rendered and to be rendered until such time when his appointment shall have been legally and lawfully terminated by competent authority." 3 No damages were awarded and there was no pronouncement as to costs. Hence, this appeal by the then Solicitor General, now Associate Justice, Antonio P. Barredo, wherein he stressed that the two legal issues involved are "the applicability of Commonwealth Act No. 588, providing that temporary designations made by the President pursuant thereto are effective only until the adjournment of the session of Congress, and non-exhaustion of administrative remedies." 4 On both points, he contended that the lower court erred. A careful study of such issues in the light of the constitutional provisions that have relevance, as noted in the respective briefs as well as the appealed decision, lead to the conclusion that respondent's stand is supported by the law. As noted at the outset then, the judgment on appeal cannot be affirmed.

1. It is of course undeniable that for the designation of petitioner as Acting Vice-Mayor to be valid, it must be located within the confines of the constitutional and statutory authority of the President. We start with the Constitution. The President has the power to nominate and, with the consent of the Commission on Appointments, to appoint certain constitutional officials when Congress is in session and during its recess to extend ad interimappointments effective until disapproval of the Commission or until the next adjournment of Congress. 5 The broad authority thus conferred has been construed to allow designations for acting appointments. As was set forth inSummers v. Ozaeta, 6 this Court speaking through the then Justice, later Chief Justice, Paras said: "Moreover, anad interim appointment is one made in pursuance of paragraph (4), section 10, Article VII, of the Constitution, ... . It 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. ... Said appointment is of course distinguishable from an 'acting' appointment which is merely temporary, good until another permanent appointment is issued." 7 There could be no valid objection then to the designation of petitioner as Acting Vice-Mayor. At the time of the vacancy in the office of the Vice-Mayor of the City of Naga in 1965, the statutory provision then in force empowered the President to fill the permanent vacancy resulting from the cessation of the incumbent Vicente P. Sibulo, who assumed the position of Mayor as a result of the election of Congressman Ramon Felipe, Jr., its previous occupant. 8

There was thus no impediment to the assumption by petitioner as Acting Vice-Mayor, but the duration thereof is dependent on Commonwealth Act No. 588, which expressly limits it to the period during which the legislative body is in regular session. As a matter of fact, the statute, by using negative language, was even more emphatic, there being the explicit requirement that "such temporary designation ... shall in no case continue beyond the date of the adjournment of the regular session of the National Assembly next following such designation." 9 It is not to be forgotten that even an ad interim appointment permanent in character ceases not only upon the adjournment following a regular session but also after a special session, as held in Guevarra v. Inocentes. 10 Petitioner did admit in the stipulation of facts that his previous ad interim appointment expired upon the close of the special session on January 22, 1966. It cannot be truly said therefore that the conclusion reached by the lower court is impressed with merit. It is at war with the letter of the statute no less than the spirit of the Constitution.

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Petitioner cannot be entirely unaware of the flaw vitiating his claim to continue acting under such designation, considering what is provided in Commonwealth Act No. 588. Hence, in his brief, he would deny its applicability to his situation. That is a position attended with grave risk. It is as if he were out perched on a limb and he would saw it off. For without this enactment, he could not have been designated at all. As was noted, there was a previous ad interim appointment, but he was bypassed. He was not extended a new one. Instead, his competence to act as Vice-Mayor was by virtue of the designation made on April 4, 1966. Such a step could be justified solely by virtue of this specific statute. It is a principle that is well-settled in public law that a public officer having the capacity to act on behalf of the Government in whom the exercise of sovereignty is vested has to be chosen in the manner and form provided by law. Otherwise, he would be a plain usurper of official functions. What is worse in this particular case was that petitioner could not have been possibly ignorant of the termination of his status as Acting Vice-Mayor. As early as May 31, 1966, he was informed by Assistant Executive Secretary Flores Bayot that his designation as Acting Vice-Mayor did cease upon the adjournment of the regular session of Congress on May 19, and that a new designation was still under consideration. 11 Petitioner appeared to have the quality of stubbornness, however, for under date of February 17, 1967, in a telegram for the information and guidance of respondent City Auditor, there was again a reiteration of the presidential determination that he had ceased as such Acting Vice-Mayor, no new designation having been made after May 19, 1966. Moreover, petitioner was explicitly informed that he should not continue in office, he not having even the color of title thereto after May 19, 1966. He was likewise ordered to refrain from performing the duties of said office upon pain of the appropriate drastic action that would be taken against him. 12 This Court need not go so far as to stress the well-settled principle that an act of a department head, unless disapproved or reprobated by the President, presumptively emanates from him and is to be treated as such. 13 It does not admit of doubt, though, that considering the extensive range of authority of the Executive Secretary who ordinarily acts for and in behalf of the President, the decisions of such office which are attributable to the Executive have been performed by the Assistant Executive Secretaries. At any rate, petitioner was only to blame if, notwithstanding such plain, explicit and categorical expression of the presidential wishes on the matter, he would hold on to a position to which, in law, he has no valid claim. Hence, the reversal of the appealed decision is called for.

2. On the second issue raised that there was a failure on the part of the petitioner to exhaust administrative remedies, there is much to be said for the approach taken by the then Solicitor General Barredo, as set forth in the brief for respondents as appellants. Thus: "It will be recalled that on June 21, 1966, the appellee wrote to the Division Auditor for Southern Luzon through the City Auditor presenting his claim for salary for June 1 to 15, 1966, invoking the opinion of the City Fiscal in his favor. The City Auditor indorsed the appellee's claim to the Division Auditor recommending favorable action ... . In turn, the Division Auditor forwarded the appellee's claim to the Auditor General, concurring in the preceding indorsement of the City Auditor ... . While the appellee did take the correct and proper step in filing his claim with the Auditor General through channels, he did not do right in filing the instant complaint without awaiting the decision of the Auditor General from which, if adverse or not satisfied therewith, he could have appealed to the President of the Philippines or to this Honorable Court." 14

As to the mandatory character subject to well-defined exceptions of the principle that administrative remedies must be exhausted, a recent decision, Secretary of Agriculture and Natural Resources v. De Los Angeles, 15 had the following to say: "The doctrine that there must be an exhaustion of administrative remedies received its first expression, without such language being employed, in Ang Tuan Kai v. Import Control Commission, a 1952 decision. Thus: 'These special civil actions against administrative officer should not be entertained if superior administrative officers could grant relief.' This view given expression by Justice Alex Reyes received confirmation a year later from Justice Tuason in these words: 'Incidentally, Reyes' case is an expressive confirmation of the respondents' other contention that the petitioner has a plain, speedy and adequate remedy other than a resort to the courts of justice. What the petitioner could or should have done was to appeal to the Secretary of Finance as Reyes had done.' Later that same year, the then Justice Reyes employed the precise formulation, as is evident from this portion of the opinion: 'having failed to exhaust their remedy in the administrative branch of the Government, plaintiffs cannot now seek relief in the courts of justice.' By 1958, the then Justice, now Chief Justice, Concepcion could explicitly affirm: 'It is well-settled that before one resorts to the courts of justice, such administrative remedies as may be available should first be exhausted.' That is a ruling that has been, since then, uninterruptedly adhered to. There are exceptions of course, but the present proceeding does not fall within any of them." 16

WHEREFORE, the appealed decision of June 23, 1967 is reversed and the petition for mandamus is dismissed. No pronouncement as to costs.

Concepcion, C.J., Zaldivar, Castro, Teehankee, Makasiar, Antonio and Esguerra, JJ., concur.

Barredo, J., took no part.

Makalintal, J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-30188 October 2, 1928

FELIPE TAYKO, EDUARDO BUENO, BAUTISTA TAYKO, BERNARDO SOLDE and VICENTE ELUM, petitioners, vs.NICOLAS CAPISTRANO, acting as Judge of First Instance of Oriental Negros. ALFREDO B. CACNIO, as Provincial Fiscal of Oriental Negros, and JUAN GADIANI, respondents.

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Abad Santos, Camus and Delgado and Teopisto Guingona for petitioners. Araneta and Zaragoza for respondents. The respondent Judge in his own behalf.

OSTRAND, J.:

This is a petition for a writ of prohibition enjoining the respondent judge from making cognizance of certain civil and criminal election cases in which the petitioners are parties.

The petitioners allege that the respondent judge, previous to this date, was appointed judge of the Court of First Instance of Oriental Negros, to hold office during good behavior and until he should reach the age of 65 years; that he now has reached that age and, therefore, under the provisions of section 148 of the Administrative Code as amended, is disqualified from acting as a judge of the Court of First Instance. The petitioners further allege that in view of the many election protests and criminal cases for violation of the election law filed in the Court of First Instance of Oriental Negros arising in the Court of First Instance of Oriental Negros arising from the last election of June 5, 1928, the Honorable Sixto de la Costa was duly designated and acted as auxiliary judge of the Province of Oriental Negros; that between the auxiliary judge and the respondent judge herein there was an understanding, and the assignment of the said auxiliary judge was made with this understanding, that the said auxiliary judge so designated would hear and take cognizance of all election protests and criminal actions then pending or to filed arising from the said last general election, and that the respondent Honorable Nicolas Capistrano would try and hear the ordinary cases pending in the said court, but, notwithstanding this understanding or agreement, the respondent judge tried and is still trying to take cognizance of the election protests an criminal actions in said court; that the respondent judge declared in open court that he will try the criminal cases herein mentioned for the reason that the auxiliary judge refused to try the same on the ground that the preliminary investigations were held before him, when, in truth and in fact, the said auxiliary judge did not make the statement imputed to him and was and is still willing to try the election protests and criminal cases for violation of the election law pending in the court of the Province of Oriental Negros; that the respondent Honorable Nicolas Capistrano, in spite of the fact that he was holding and is now pretending to hold the office of judge of the Court of First Instance of Oriental Negros, took great interest and active part in the filing of criminal charges against the petitioners herein to the unjustifiable extent of appointing a deputy fiscal, who then filed the proper informations, when the provincial fiscal refused to file criminal charges against the petitioners for violation of the election law for lack of sufficient evidence to sustain the same; that said respondent is neither a judge de jure nor de facto, but that, notwithstanding this fact, he continues to hold the office of judge of the Court of First Instance of Oriental Negros and pretends to be duly qualified and acting judge of the said province; and that he has tried, and continues to try, to act as such judge and that there is reasonable ground to believe that he will take cognizance of the cases in question unless he be restrained by order of this court; that in acting as a duly qualified judge notwithstanding the facts alleged in the fifth, sixth, and seventh paragraphs hereof, the respondent judge acted and is about to act without and in excess of jurisdiction and also after the loss of jurisdiction.

To this petition the respondents demur on the ground that the facts stated in that (1) none of the facts alleged in the petition divest the respondent judge of his jurisdiction to take cognizance of the cases referred to in the complaint, and (2) even admitting as true, for the sake of this demurrer, the facts alleged in paragraph 7 of the petition, the respondent judge is still a de facto judge and his title to the office and his jurisdiction to hear the cases referred to in the petition cannot be questioned by prohibition, as this writ, even when directed against persons acting as judges, cannot be treated as a substitute for quo warranto, or be rightfully called upon to perform any of the functions of that writ.

The ground upon which the petition rests may be reduced to three propositions. (1) That the assignment of the Auxiliary Judge, Sixto de la Costa, to Dumaguete was made with the understanding that the he was to hear and take cognizance of all election contests and criminal causes for violation of the election law and that the respondent judge was to take cognizance of the ordinary cases and that there was an understanding between them that this arrangement was to be followed.

(2) That the respondent judge took great interest and an active part in the filing of the criminal charges against the petitioners herein to the unjustifiable extent of appointing a deputy fiscal who filed the proper informations when the regular provincial fiscal refused to file them for lack of sufficient evidence.

(3) That the respondent judge is already over 65 years of age and has, therefore, automatically ceased as judge of the Court of First Instance of Oriental Negros and that he is neither a judge de jure nor de facto.

(a) But little need be said as to the first proposition. A writ of prohibition to a judge of an interior court will only lie in cases where he acts without or in excess of his jurisdiction (section 226, Code of Civil Procedure), and it is obvious that a mere "understanding" as to the distribution of cases for trial did not deprive the respondent judge of the jurisdiction conferred upon him by law. It may be noted that it is not alleged that another judge had taken cognizance of the cases in question or that they had been definitely assigned to trial before such other judge.

(b) The second proposition is equally untenable.1awph!l.net That the respondent judge took great interest and an active part in the filing of the criminal charges against the petitioners to the extent of appointing a deputy fiscal when the regular provincial fiscal refused to file the proper informations, did not disqualify him from trying the case in question. Section 1679 of the Administrative Code provides that "when a provincial fiscal shall be disqualified by personal interest to act in a particular case or when for any reason he shall be unable, or shall fail, to discharge any of the duties of his position, the judge of the Court of First Instance of the province shall appoint an acting provincial fiscal, . . . ." (Emphasis ours.)

The determination of the question as to whether the fiscal has failed to discharge his duty in the prosecution of a crime must necessarily, to a large extent, lie within the sound discretion of the presiding judge, and there is no

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allegation in the petition that such discretion was abused in the present instance. It is true that it is stated that the appointment of the acting fiscal was "unjustifiable," but that is only a conclusion of law and not an allegation of facts upon which such a conclusion can be formed and may, therefore, be disregarded. It follows that in appointing an acting fiscal, the respondent judge was well within his jurisdiction.

(c) The third ground upon which the petition is based is the most important and merits some consideration. It is well settled that the title to the office of a judge, whether de jure or de facto, can only be determined in a proceeding in the nature of quo warranto and cannot be tested by prohibition. But counsel for the petitioners maintains that the respondent judge is neither a judge de jure nor de facto and that, therefore, prohibition will lie. In this, counsel is undoubtedly mistaken.

The respondent judge has been duly appointed to the office of Judge of the Court of First Instance of Oriental Negros, but section 148 of the Administrative Code, as amended, provides that "Judges of the Court of First Instance and auxiliary judges shall be appointed to serve until they shall reach the age of sixty-five years." In view of this provision and assuming, as we must, that the allegations of the petition are true, it is evident that the respondent is no longer a judge de jure, but we do not think that it can be successfully disputed that he is still a judge de facto.

Briefly defined, a de facto judge is one who exercises the duties of a judicial office under color of an appointment or election thereto (Brown vs. O'Connell, 36 Conn., 432). He differs, on the one hand, from a mere usurper who undertakes to act officially without any color of right, and on the other hand, from a judge de jure who is in all respects legally appointed and qualified and whose term of office has not expired (State vs. Carroll, 38 Conn., 449; Denny vs. Matton, 2 Allen [Mass.], 361; Van Slyke vs. Farmers' Mut. Fire Ins. Co., 39 Wis., 390).

Apart from any constitutional or statutory regulation on the subject there seems to be a general rule of law that an incumbent of an office will hold over after the conclusion of his term until the elction and qualification of a successor (22 R. C. L., pp. 554-5). When a judge in good faith remains in office after his title has ended, he is a de facto officer (Sheehan's Case, 122 Mass., 445).

Applying the principles stated to the facts set forth in the petition before us, we cannot escape the conclusion that, on the assumption that said facts are true, the respondent judge must be considered a judge de facto. His term of office may have expired, but his successor has not been appointed, and as good faith is presumed, he must be regarded as holding over in good faith. The contention of counsel for the petitioners that the auxiliary judge present in the district must be considered the regular judge seems obviously erroneous.

In these circumstances the remedy prayed for cannot be granted. "The rightful authority of a judge, in the full exercise of his public judicial function, cannot be questioned by any merely private suitor, nor by any other, excepting in the form especially provided by law. A judge de facto assumes the exercise of a part of the prerogative of sovereignty, and the legality of that assumption is open to the attack of the sovereign power alone. Accordingly, it is a well established principle, dating from the earliest period and repeatedly confirmed by an unbroken current of decisions, that the official acts of a de facto judge are just as valid for all purposes as those of a de jure judge, so far as the public or third persons who are interested therein are concerned. The rule is the same in civil criminal cases. The principle is one founded in policy and convenience, for the right of no one claiming a title or interest under or through the proceedings of an officer having an apparent authority to act would be safe, if it were necessary in every case to examine the legality of the title of such officer up to its original source, and the title or interest of such person were held to be invalidated by some accidental defect or flaw in the appointment, election or qualification of such officer, or in the rights of those from whom his appointment or election emanated; nor could the supremacy of the laws be maintained, or their execution enforced, if the acts of the judge having a colorable, but not a legal title, were to be deemed invalid. As in the case of judges of courts of record, the acts of a justice de facto cannot be called in question in any suit to which he is not a party. The official acts of a de facto justice cannot b attacked collaterally. An exception to the general rule that the title of a person assuming to act as judge cannot be questioned in a suit before him is generally recognized in the case of a special judge, and it is held that a party to an action before a special judge may question his title to the office of a judge on the proceedings before him, and that the judgment will be reversed on appeal, where proper exceptions are taken, if the person assuming to act as special judge is not a judge de jure. The title of a de facto officer cannot be indirectly questioned in a proceeding to obtain a writ of prohibition to prevent him from doing an official act nor in a suit to enjoin the collection of a judgment rendered by him. Having at least colorable right to the office his title can be determined only in a quo warranto proceeding or information in the nature of a quo warranto at suit of the sovereign." (15 R. C. L., pp. 519-521.)

The demurrer to the petition is sustained, and inasmuch as it is evident that the weakness of the petition cannot be cured by amendment the present proceedings are hereby dismissed with the costs against the petitioners jointly and severally. The preliminary injunction hereinbefore issued is dissolved. So ordered.

Avanceña, C. J., Johnson, Street, Malcolm, Villamor, Romualdez, and Villa-Real, JJ., concur.

EN BANC

G.R. No. L-24529 February 17, 1968

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EDUARDO JIMENEZ, petitioner, -versus-

REPUBLIC OF THE PHILIPPINES and JUDGE PEDRO NAVARRO, Court of First Instance of Rizal, respondents.

Office of the Solicitor General, Bengzon, Villegas & Zarraga and Alfredo R. Mabanag for respondents. Neptali A. Gonzales for petitioner.

ANGELES, J.:

On petition for writs of certiorari, prohibition and mandamus, with preliminary injunction, to the Court of First Instance of Rizal, praying: (a) to review and thereafter annul the order of respondent Judge denying petitioner's motion to set aside decision and promulgation thereof; (b) to restrain respondent Judge from promulgating the decision; and (c) to direct respondent Judge "to make re-examination of the evidence presented" during the trial of the case and to render a decision upon the evidence.

The antecedent facts of the case which are not disputed, are the following:

Eduardo Jimenez, herein petitioner, together with others, was charged with homicide in an information, dated May 13, 1960, before the Court of First Instance of Rizal, criminal case No. 9531, of said court. The case was heard and tried before Judge Eulogio Mencias, presiding one of the branches of the court. Admittedly, the decision prepared and signed by Judge Mencias was delivered to the clerk of court on January 16, 1965. On the same date the clerk of court issued and served notice on the petitioner to appear in court on January 21, 1965 for the promulgation of the sentence. In view that January 21, was declared by the President a special holiday, the promulgation of the decision could not be carried out on that day. On January 21, 1965, Judge Eulogio Mencias had reached the age of 70 and was retired on that day from the bench. Respondent Judge Pedro Navarro was immediately designated to take the place of Judge Mencias. The former judge ordered that the sentence be promulgated on January 29, 1965, but for some reason, it was postponed to March 1, 1965.

On March 1, 1965, petitioner Jimenez filed a motion to set aside decision and promulgation thereof, on the following grounds: (a) "That the case was heard and tried by the Hon. Eulogio Mencias and judgment was rendered by him before he retired on January 21, 1965, having reached the age of 70 years"; and (b) "That said judgment cannot be validly promulgated since it is no longer the official act of a judge, either de jure or de facto."

The motion was opposed by the private prosecutor.

On April 2, 1965, the respondent Judge issued an order denying the motion, and ordered that the decision be promulgated.

Hence, the instant petition.

The theory of the petitioner is, that for a decision to be validly promulgated, the same must not only be rendered be a judge legally appointed and acting either as de jure or de facto, but that the decision must also be promulgated during the incumbency of the judge who penned the decision, reasoning that if the judge who penned the decision is no longer a judge at the time of the promulgation, there is nothing that can legally be promulgated because the decision is no longer an official act of the judge.

The Solicitor General, on the other hand, contends that, while he is in accord with the view that for a decision to be validly promulgated there must be a judge legally appointed and acting, either de jure or de facto, it is not necessary that the promulgation be made during the incumbency of the judge who prepared and signed the decision, and the decision can be validly promulgated as long as it was signed and delivered to the clerk of court for promulgation during the judge's term of office.

Before the effectivity of the Revised Rules of Court, on January 1, 1964, the rule on promulgation of judgment in criminal cases was Section 6, Rule 116 of the Rules of Court, which reads thus:

Sec. 6. Promulgation of judgment. — The judgment is promulgated by reading the judgment or sentence in the presence of the defendant and the judge of the court who has rendered it. The defendant must be personally present if the conviction is for a grave or less grave offense; if for light offense, the judgment may be pronounced in the presence of his attorney or representative. And when the judge is absent or outside of the province, his presence is not necessary and the judgment may be promulgated or read to the defendant by the clerk of court. [Emphasis supplied]

After January 1, 1964, the rule now is Section 6, Rule 120 of the Revised Rules of Court, which reads thus:

Sec. 6. Promulgation of judgment. — The judgment is promulgated by reading the judgment or sentence in the presence of the defendant and any judge of the court in which it was rendered.

If the defendant is confined or detained in another province or city, the judgment of conviction may be promulgated by the judge of the Court of First Instance having jurisdiction over the place of confinement or detention upon the request of the court that rendered the judgment. The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the appeal bond. [Emphasis supplied]

In Ong Siu et al. v. Hon. Antonio P. Paredes, et al., G.R. No. L-21638, July 26, 1966, the facts are as follows:

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Four criminal cases, in which there were 6 accused, were tried jointly by Judge Sta. Maria of the Municipal Court of Manila, and a single decision was rendered, under date of July 7, 1962. On July 9, 1962, before the decision could be promulgated, Judge Sta. Maria was appointed to and assumed the position of judge of the Court of First Instance of Mindoro. Judge German succeeded him as Municipal Judge of Manila. Two of the accused, Fung and Lu petitioned the court that the unpromulgated decision of Judge Sta. Maria be declared null and void. Judge German granted the petition, but before retrial of the cases could be had, Judge German resigned. On August 23, 1962, Judge Paredes was appointed to the vacant position of Municipal Judge of Manila. On the same day, he scheduled the promulgation of the decision of Judge Sta. Maria. This was done with respect to the four accused, but not with regard to defendants Fung and Lu who did not appear during the promulgation of the judgment. The latter two instituted certiorari and prohibition proceedings in the Court of First Instance of Manila to restrain the promulgation of the decision. The Court of First Instance of Manila granted the writ on the ground that since Judge Sta. Maria was no longer a judge of the Municipal Court, the decision, prepared and signed by him could no longer be validly promulgated. So Judge Paredes of the municipal Court ordered a retrial of the four criminal cases which was set for March 14, 1963. The four defendants Ong, Siu Sy So Ty, Francisco Ong and Lucio Ong, went to CFI Manila and applied for a writ to restrain the Municipal Judge from retrying the four cases, on the ground that as the decision acquitting them had already been promulgated with respect to them, a retrial of the cases would subject them to double jeopardy for the same offense. The CFI Manila dismissed the petition for the reason that the decision of Judge Sta. Maria being invalid because its promulgation was effected when the judge had already ceased to be a municipal judge, the same cannot place the defendants twice in jeopardy for the same offense. The four defendants appealed to the Supreme Court. In affirming the appealed decision of the Court of First Instance, the Supreme Court in applying Sec. 6, Rule 120 of the Revised Rules, said:

The appellants in effect contend that since the decision of Judge Sta. Maria was signed by him while he was still the judge of the Municipal Court of Manila where they were tried, its promulgation, although made in his absence, was valid. In support of this contention, they cite Section 6 of Rule 116 (now Rule 120) of the Rules of Court, which reads:

Sec. 6. Promulgation of judgment. — The judgment is promulgated by reading the judgment or sentence in the presence of the defendant and any judge of the court in which it was rendered. The defendant must be personally present if the conviction is for a grave offense; if for a light offense, the judgment may be pronounced in the presence of his attorney or representative. And when the judge is absent or outside of the province or city, his presence is not necessary and, the judgment may be promulgated or read to the defendant by the clerk of court. . . . [Emphasis supplied.]

Pursuant to the above-quoted provisions, the petitioners-appellants argue, the decision of Judge Sta. Maria was promulgated in the presence of Judge Paredes, another judge of the Municipal Court. They claim that the absence of Judge Sta. Maria during the promulgation does not render the decision he penned prior to his appointment to the position of judge of the court of first instance null and void. Thus, it is alleged, the promulgation thereof, upon order of Judge Paredes, was valid and could be the basis of the defense of double jeopardy.

The above-quoted Section 6 of Rule 116 (now Rule 120) of the Rules of Court, allowing the dispensability of the presence of the judge in the reading of a sentence refers only to the physical absence of the judge, and not to his inability to be present during the promulgation of the judgment because of the cessation of or his removal front office. This is clear from the use of the disjunctive clause "absent or outside of the province or city" in the provision. In other words, the decision of the judge may be promulgated even without his presence, as long as he is still a judge of that court (Luna v. Rodriguez, 37, Phil. 186; Garchitorena v. Criscini 37 Phil. 675; Barredo v. Commission on Elections, 45 O.G. 4457; People v. Court of Appeals, G.R. Nos. L-9111-9113, Aug. 28, 1956; People v. So, G.R. No. L-8732, July 30, 1957).

In the present case, what we have is not merely physical absence of the judge who penned the decision, but the cessation of termination of his incumbency as such judge. In the case of People v. Bonifacio So y Ortega, (G.R. No. L-8732, supra) this Court ruled:

It is well-settled that to be binding a judgment must be duly signed, and promulgated during the incumbency of the judge who signed it.

In Lino Luna v. Rodriguez, supra, Judge Barreto signed his decision on January 14; two days later (January 16), he qualified as Secretary of Finance thereby retiring from the Judiciary; and on January 17, his decision was promulgated. This Court held such decision to be void, because at the time of the promulgation the judge who prepared it was no longer a judicial officer.

In criminal proceedings the Rules are more explicit. They require the judgment to be promulgated by reading the judgment or sentence in the presence of the defendant and the judge of the court who has rendered it. (Rule 116, Sec. 6); and although it is true that it may be read by the clerk "when the judge is absent or outside the province," it is implied that it may be read, provided he is still the judge therein.

It is contended that herein decision was promulgated to all intents and purposes, when it was delivered to the clerk for promulgation — June 18. That contention was, however, indirectly overruled in People v. Court of Appeals, a case similar to this wherein we regarded compliance with Sec. 6 of Rule 116 as essential to promulgation, and held that as the judgment was promulgated after the judge who penned it had ceased to be judge, it was not legally binding.

It is true that in Cea v. Cinco (50 O. G. 5254) this section was interpreted to mean that where judgment is one of acquittal, "reading in the presence of the defendant" may be substituted by giving a copy of the decision to him. We declared that such act — delivery of copy — amounted to promulgation. In the case before us, notice that the decision would be read (on June 30) was sent out, while Judge Encarnacion was still a judge. Yet no copy of such decision was

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given the accused, and he was not informed thereof during said judge's incumbency. No judgment was therefore validly entered. (Cf. Landicho v. Tan, 48 O.G. 1007).

Here, in the present case, when the notice for the promulgation of the decision was sent out, the judge who signed the decision was no longer the judge of the court, and no copy of the judgment of acquittal was delivered to the appellants. With more reasons, therefore, is there no judgment validly entered in this case.

UPON THE FOREGOING CONSIDERATIONS, We hold that the decision rendered by the retired Judge Eulogio Mencias cannot be validly promulgated and acquire a binding effect for the same has become null and void under the circumstances.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro and Fernando, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-25175 March 1, 1968

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs.SIMPLICIANO SORIA, defendant-appellee, LOURDES C. PAEZ, intervenor-appellant.

Office of the Solicitor General for plaintiff-appellant. Narciso S. Nario for defendant-appellee. Lourdes C. Paez in his own behalf as intervenor-appellate.

REYES, J.B.L., Actg. C.J.:

Appeal by the People of the Philippines from the order of dismissal, by the Court of First Instance of Nueva Ecija, of its Criminal Case No. 176-G.

Upon complaint of Lourdes C. Paez, Simpliciano Soria was criminally charged, on July 20, 1965, before the Court of First Instance of Nueva Ecija for violation of Section 39 of Republic Act 1199 (prohibition against pre-threshing), allegedly committed as follows:

That on or about the 14th day of January, 1965, in the municipality of Guimba, Province of Nueva Ecija, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being a farm-share tenant of Mrs. Lourdes C. Paez with 50-50 sharing basis, with intent to gain before the date for threshing has been set, and without notifying said landowner, did then and there wilfully, unlawfully and criminally thresh a portion of his harvest in the total amount of 1 & ½ cavans of palay without the knowledge and consent of Lourdes C. Paez, the landowner and then convert the said palay to his exclusive use and benefit and to the damage and prejudice in the amount of one half of the aforesaid amount of the said landowner.

Contrary to law.

Arraigned, the accused entered a plea of not guilty, after which, he filed a motion to quash the information on the ground that it failed to charge an offense. It was claimed that on April 10, 1964, the accused notified the landowners, by letter, that he was exercising his option to elect the leasehold system, as provided in Section 4 of the Land Reform Code starting the agricultural year 1964-1965, and that he would be shouldering all the expenses for rice production on the land; that as the landowners refused to recognize him as an agricultural lessee, the accused on January 8, 1965 filed a petition in the Court of Agrarian Relations (CAR Case No. 1314-Gva. '65), for the declaration and confirmation of his status as a leasehold-tenant and for the fixing of the rental for the use of the land; that as such leasehold tenant, he cannot be criminally liable for pre-threshing, said act not being punishable under the Land Reform Code.

In an order dated October 1, 1965, but allegedly promulgated on October 19, 1965, Judge Placido C. Ramos granted the motion and directed the dismissal of the information, for the reason that upon exercise by the tenant of his right to elect the leasehold system, he became a lessee. The Judge held that the accused committed no offense when he threshed the palay in question, because under the Land Reform Code, pre-threshing by a lessee is not a criminal act. The prosecution, through the Assistant Provincial Fiscal, signified its intention to appeal to this Court, on the ground that the order of dismissal was contrary to law and that the judge who issued the same was without authority to do so.

The Solicitor General filed the brief for appellant in this case. However, the State counsel in effect sided with the accused-appellee urging the affirmance of the appealed order, on the argument that, there having been a valid exercise by the accused of his right to elect the leasehold system, the case was removed from the operation of Republic Act 1199 and should be governed instead by the provisions of

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the Land Reform Code which does not penalize pre-threshing. In view of this stand taken by the Solicitor General, the complainant, with leave of this Court, filed a brief as intervenor-appellant, assailing the correctness of the order on appeal.

She now contends that Republic Act 3844 (Land Reform Code) is not applicable to the present case, the municipality of Guimba, in Nueva Ecija, not having been proclaimed as yet by the National Land Reform Council as a land reform area; that the mere exercise by the tenant of his right to elect the leasehold system did not automatically convert his relationship with the landowners from share tenancy to leasehold, because there still remain certain steps to be observed, such as the fixing of rentals; that the dismissal of the information was improper, the allegation of the accused that he had shouldered all the expenses of production being a matter of defense that must be proved at the trial. Appellant, likewise, raises the question of the validity of the order, it being alleged that the date of its promulgation, Judge Placido C. Ramos who penned it was no longer Judge of the Court of First Instance of Nueva Ecija, he, having been appointed and having qualified to the position of Judge of the Court of First Instance of Manila.

This appeal must be dismissed, for it appears that the order of Judge Ramos, although dated October 1, 1965, was actually received by the Clerk of the Court of First Instance of Nueva Ecija and filed with the records of the case only on October 19, 1965; but prior to that date, on October 11, 1965, Judge Ramos had been extended by the President an ad interim appointment to the Court of First Instance of Manila, to which position he qualified on October 12, 1965. Evidently, therefore, while the order in question might have been written by Judge Ramos prior to his assumption of office as Judge of First Instance of Manila, the said order was promulgated after he had ceased as Judge of the Court of First Instance of Nueva Ecija. This renders the promulgation of the dismissal order invalid, for it is not the date of the writing of the decision or judgment that constitutes rendition thereof and gives it validity and binding effect, but the filing of such decision or judgment or order with the Clerk of Court.1And, if the decision is sent by registered mail, it is considered filed in court, not as of the date of posting, but as of its receipt by the Clerk.2 In similar cases, decisions promulgated after the judge who penned the same had been appointed and had qualified to another court were declared not valid and without any effect.3

The Solicitor General, however, advances the theory that, notwithstanding Judge Ramos' appointment and qualification to the Manila Court of First Instance, he did not cease "holding office" and could have continued discharging the functions of Judge of First Instance of Nueva Ecija, because nobody was immediately appointed to fill the latter position; and that the promulgation of the order even after the assignment of the judge to another court is allowed under Section 9 of Revised Rule 135 of the Rules of Court.

We cannot subscribe to this view. Under the law, after his acceptance of the appointment to preside over Branch III of the Court of First Instance of Manila, Judge Ramos could sit and attend to cases in any other court only upon proper authority of the Secretary of Justice, with the previous approval of this Court,4 of which there is none in the present case. Nor is the validity of the questioned order of dismissal supported by Section 9 of Revised Rule 135 of the Rules, which reads:

Sec. 9. Signing judgments out of province. — Whenever a judge appointed or assigned in any province or branch of a Court of First Instance in a province shall leave the province by transfer or assignment to another court of equal jurisdiction, or by expiration of his temporary assignment, without having decided a case totally heard by him and which was argued or an opportunity given for argument to the parties or their counsel, it shall be lawful for him to prepare and sign his decision in said case anywhere within the Philippines. He shall send the same by registered mail to the clerk of the court where the case was heard or argued to be filed therein as of the date when the same was received by the clerk, in the manner as if he had been present in court to direct the filing of the judgment. . . . (Emphasis supplied.)

The same provision appears in the Judiciary Act of 1948, as amended, as follows:1äwphï1.ñët

Sec. 51. Detail of judge to another district or province. —

x x x x x x x x x

Whenever a judge appointed or assigned in any province or branch of a court in a province shall leave the province by transfer or assignment to another court of equal jurisdiction without having decided a case totally heard by him and which was duly argued or opportunity given for argument to the parties or their counsel, it shall be lawful for him to prepare and sign his decision in said case anywhere within the Philippines and send the same by registered mail to the clerk of the court to be filed in the court as of the date when the same was received by the clerk, in the same manner as if the judge had been present in the court to direct the filing of the judgment. . . .

It may be noted therefrom that the signing or writing of judgments outside the territorial jurisdiction of the court where the cases are pending, is allowed when the judge leaves the province "by transfer or assignment to another court of equal jurisdiction", or "by expiration of his temporary assignment." In other words, the rule contemplates of a temporary occupancy by the judge of either the post he has left or of the one he is going to assume. This is fortified by the appearance of the same provision in the Judiciary Act under the heading "[D]etail of judge to another district or province", which conveys the idea that the transfer or assignment of the judge treated therein is merely a detail and not one of permanent character. That cannot be said of the appointment of Judge Ramos from the Court of First Instance of Nueva Ecija to the Court of First Instance of Manila. Having been extended by the President, it could not be the temporary assignment or detail, from one court to another of equal jurisdiction and effected by the Secretary of Justice, specified, in the above-quoted provisions.

As it has been repeatedly ruled, section 6 of Revised Rule 120 (old Rule 116) refers only to the physicalabsence of the judge, not to an absence by reason of cessation or removal from office (Ong Siu vs. Paredes,ante; People vs. So y Ortega, L-8732, July, 30, 1957; Jimenez vs. Republic, L-24529, January 31, 1968).

FOR THE FOREGOING CONSIDERATIONS, the order appealed from is hereby set aside, and the case is remanded to the court below for resolution anew of the motion to quash, and for further proceedings according to law. No costs.

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Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur

Republic of the Philippines SUPREME COURT

ManilaEN BANC

G.R. No. L-412November 16, 1901THE UNITED STATES, Complainant-Appellee, vs. CAYETANO ABALOS, Defendant-Appellant.

ARELLANO, C.J.Shortly after 8 o'clock in the evening of October 23, 1900, six unknown persons presented themselves in the immediate vicinity of the house of Pedro Pascua, situated in the pueblo of Santa Maria, Province of Ilocos Sur. One of these ordered that the man within the house come down, and as Pascua did not do so because of his fear, one of the unknown, who was recognized and proved later to be the accused, Cayetano Abalos, went up into the house. There the accused, without any apparent motive, struck Pascua repeated blows with a dagger, inflicting upon him five wounds, two of which, in the left side of the chest and in the abdomen, were serious and dangerous according to the medical practitioner who examined him. The patient was cured in thirty-one days, with the result that an opening remained in the abdominal region which produced a hernia which exposed the patient to grave accidents. Notwithstanding the fact that the aggressor set out to escape immediately of the wounded person, as well as he himself, were able to recognize him.

The facts related appear duly proved in the action as well as the guilt of the accused, Cayetano Abalos, fully convicted as principal by direct participation of the crime of assault of grave character on the person of Pedro Pascua. Although the accused pleaded not guilty is established by the testimony of two eyewitnesses who confirm the accusation and, together with the person attacked, recognized the accused at the time of the assault; by the statements of three neighbors who were attracted by the cries of the wife of the complainant and who were then informed of what had taken place and of the fact that the attacking person was Cayetano Abalos; by the inexplicable absence and disappearance of the accused from his house since the date of the occurrence, without having appeared in spite of judicial citations until he was arrested on April 3 of this year. This absence is proven by the answers given by the justices of the peace of the districts of Ilocos Sur and Union and by the local president of Narvacan, which contradict and destroy the proof of an alibiattempted by the defendant. It is also to be noted that whereas the wife and daughter of the accused assert this alibi two other witnesses whom he had also cited testified that Cayetano Abalos absented himself from his house, going, according to one of them, to the town of San Jose de Abra.There should be considered in the perpetration of the crime the concurrence of the aggravating circumstances Nos. 15 and 20 of article 10 of the Code, since the defendant committed the same by availing himself of the darkness and silence of the night, attacking the complainant in his own house without the latter's having provoked or given reason for the deed. Owing to the nature of the crime the mitigating circumstances provided in article 11 should not be considered, nor should any other extenuating circumstances be deemed present. Since on account of the consequences produced by the wound of the abdomen, the deed must be classed as constituting a grave assault (lesion grave) included in article 416, No. 3, of the Penal Code, it follows that the accused has incurred the penalty prescribed in the aforesaid article and number in the maximum degree.In this court the Solicitor-General asks that the final judgment of the Court of First Instance be annulled on the ground that the same was pronounced after the 16th day of June last, from which he infers that it was rendered by one who was not a judge.

By article 65 of the law organizing courts of justice for the Philippine Islands, No. 136 of those promulgated by the legislative commission, the Court of First Instance which then existed became extinguished by the substitution of those which that same act created. The latter was passed the 11th day of June, of the present year and went into effect on the 16th day of the same month. (Art. 92.)

Consequently the said judges should have ceased to act on the 16th, the day on which the new organic law commenced to operate, but in fact almost all of them continued exercising their functions until the newly appointed judges arrived to take charge. The reason for this continuation was, as to some, due to ignorance of the new organization, and as to others, the circumstance that, under previous laws which controlled the commencement and the termination of the jurisdiction which they exercised, certain prior acts were necessary without which they would have incurred criminal responsibility, such as might have been incurred in the present case for abandonment of their public functions to the injury of the public, which would have been without an administration of justice during the days that elapsed until the new judges assumed charge. As to the public there was nothing to induce a contrary belief, that is, that certain judges whom the public was accustomed to recognize as true and legitimate judges were incompetent.

Therefore they were judges of the new courts de facto and in good faith. No usurpation of jurisdiction can be imputed to them. As such judges they were accepted by common error.It is a universally professed doctrine that the acts of judges, considered such by common error, whether there be color of title or not (as in this case there was), are valid and effective in favor of the public welfare. This, according to the phrase of one law, is the most humane course, one which can injure no one, and brings no discredit upon the administration of justice. On the other hand much harm would result to the prejudice of the public, wholly free from blame and unchargeable with any responsibility, if by the rigor of the law such acts must be

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declared null, solely upon the ground that the judges were, according to the intent of the legislator, to cease to be such after the 16th of June last.

In the American law there can be cited the decision of the Supreme Court of the United States in the case of Norton vs.Shelby County (118 U.S., 425, 445, 446).In the Spanish law, law 4, title 4 of the third Partida, in which is reproduced the famous law of Barbarius Philippus of the Roman Digest, treats of the acts of a slave who had been invested with judicial authority, it not being known that he was in slavery; in such case as this, declares the law, "the judgments and the orders and all other things done in virtue of his office, until the day it was discovered he was a slave, would be valid. And this the ancient sages thought just , because when a whole people commit an error it should be overlooked by all of them, as though it had never happened." The fifth law, first title of Book XI, of the Novisima Recopilacion, concerning this same case, declares "that the judgments and orders and all other things done in virtue of his office as judge were valid up to the day he was discovered to be a slave since by common opinion he was regarded as free."For these reasons we decide that the judgment here alleged to be null should not be so declared.

For the foregoing considerations it is proper that Cayetano Abalos be sentenced to the penalty of four years of prision correccional together with the accessory penalties prescribed in article 61 of the Code and to indemnify the injured party in the sum of 100 pesos and in the event of insolvency to the corresponding subsidiary imprisonment; and to the payment of the costs in both instances. In the penalty imposed there is not to be computed the provisional imprisonment of the defendant for the reason that he is within the exception provided in No. 3 of the ninety-third rule of the provisional law for the application of the Penal Code. The judgment appealed from is therefore affirmed in so far as the same is in accord with the foregoing opinion and reversed in so far as it is not so. So ordered.Torres, Cooper, Willard, and Mapa, JJ., concur. Ladd, J., did not sit in this case.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 116418 March 7, 1995

SALVADOR C. FERNANDEZ and ANICIA M. DE LIMA, petitioners, vs.HON. PATRICIA A. STO. TOMAS, Chairman, and HON. RAMON B. ERENETA, Commissioner, Civil Service Commission, respondents.

FELICIANO, J.:

In this Petition for Certiorari, Prohibition and Mandamus with Prayer for a Temporary Restraining Order, petitioners Salvador C. Fernandez and Anicia M. de Lima assail the validity of Resolution No. 94-3710 of the Civil Service Commission ("Commission") and the authority of the Commission to issue the same.

Petitioner Fernandez was serving as Director of the Office of Personnel Inspection and Audit ("OPIA") while petitioner de Lima was serving as Director of the Office of the Personnel Relations ("OPR"), both at the Central Office of the Civil Service Commission in Quezon City, Metropolitan Manila. While petitioners were so serving, Resolution No. 94-3710 signed by public respondents Patricia A.. Sto. Tomas and Ramon Ereneta, Jr., Chairman and Commissioner, respectively, of the Commission, was issued on 7 June 1994. 1 Resolution No. 94-3710 needs to be quoted in full:

RESOLUTION NO. 94-3710

WHEREAS, Section 17 of Book V of Executive Order 292 provides that ". . . as an independent constitutional body, the Commission may effect changes in the organization as the need arises;"

WHEREAS, the Commission finds it imperative to effect changes in the organization to streamline its operations and improve delivery of public service;

WHEREAS, the Commission finds it necessary to immediately effect changes in the organization of the Central Offices in view of the need to implement new programs in lieu of those functions which were transferred to the Regional Offices;

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WHEREFORE, foregoing premises considered, the Commission hereby RESOLVES to effect the following changes in its organization, specifically in the Central Offices:

1. The OCSS [Office of Career Systems and Standards], OPIA [Office of Personnel Inspection and Audit] and OPR [Office of Personnel Relations] are merged to form the Research and Development Office (RDO).

2. The Office for Human Resource Development (OHRD) is renamed Human Resource Development Office (HRDO).

3. The following functions and the personnel assigned to the unit performing said functions are hereby transferred to HRDO:

a. Administration of the Honor and Awards program under OCSS;

b. Registration and Accreditation of Unions under OPR; and

c. Accreditation of Agencies to take final action on appointments under OPIA.

4. The Office for Central Personnel Records (OCPR) is renamed Management Information Office (MIO).

5. The Information technology functions of OPM and the personnel assigned to the unit are transferred to MIO.

6. The following functions of OPM and the personnel assigned to the unit performing said functions are hereby transferred to the Office of the Executive Director:

a. Financial Audit and Evaluation;

b. Internal Management and Improvement;

c. Research and Statistics; and

d. Planning and Programming.

7. The library service and its personnel under OCPR are transferred to the Central Administrative Office.

8. The budget allocated for the various functions shall be transferred to the Offices where the functions are transferred. Records, fixtures and equipment that go with the functions shall be moved to where the functions are transferred.

Annex A contains the manning list for all the offices, except the OCES.

The changes in the organization and in operations shall take place before end of July 1994.

Done in Quezon City, July 07, 1994.

(Signed)Patricia A. Sto. Tomas

Chairman

(Signed) Did not participateRamon P. Ereneta, Jr., Thelma P. GamindeCommissioner Commissioner

Attested by:(Signed)

Carmencita Giselle B. DaysonBoard Secretary V 2

During the general assembly of officers and employees of the Commission held in the morning of 28 July 1994, Chairman Sto. Tomas, when apprised of objections of petitioners, expressed the determination of the Commission to implement Resolution No. 94-3710 unless restrained by higher authority.

Petitioners then instituted this Petition. In a Resolution dated 23 August 1994, the Court required public respondents to file a Comment on the Petition. On 21 September 1994, petitioners filed an Urgent Motion for Issuance of a Temporary Restraining Order, alleging that petitioners had received Office Orders from the Commission assigning petitioner Fernandez to Region V at Legaspi City and petitioner de Lima to Region III in San Fernando, Pampanga and praying that public respondents be restrained from enforcing these Office Orders. The Court, in a Resolution dated 27 September 1994, granted this Motion and issued the Temporary Restraining Order prayed for by petitioners.

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The Commission filed its own Comment, dated 12 September 1994, on the Petition and then moved to lift the Temporary Restraining Order. The Office of the Solicitor General filed a separate Comment dated 28 November 1994, defending the validity of Resolution No. 94-3710 and urging dismissal of the Petition. Petitioners filed separate Replies to these Comments. The Commission in turn filed a Rejoinder (denominated "Comment [on] the Reply").

The principal issues raised in this Petition are the following:

(1) Whether or not the Civil Service Commission had legal authority to issue Resolution No. 94-3710 to the extent it merged the OCSS [Office of Career Systems and Standards], the OPIA [Office of Personnel Inspection and Audit] and the OPR [Office of Personnel Relations], to form the RDO [Research and Development Office]; and

(2) Whether or not Resolution No. 94-3710 violated petitioners' constitutional right to security of tenure.

I.

The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 July 1987) sets out, in Book V, Title I, Subtitle A, Chapter 3, the internal structure and organization of the Commission in the following terms:

Sec. 16. Offices in the Commission — The Commission shall have the following offices:

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

(2) The Merit System Protection Board — . . .

(3) The Office of Legal Affairs — . . .

(4) The Office of Planning and Management — . . .

(5) The Central Administrative Office — . . .

(6) The Office of Central Personnel Records — . . .

(7) The Office of Position Classification and Compensation — . . .

(8) The Office of Recruitment, Examination and Placement — . . .

(9) The Office of Career Systems and Standards shall provide leadership and assistance in the formulation and evaluation of personnel systems and standards relative to performance appraisal, merit promotion and employee incentive benefits and awards.

(10) The Office of Human Resource Development — . . .

(11) The Office of Personnel Inspection and Audit shall develop policies, standards, rules and regulations for the effective conduct of inspection and audit of personnel and personnel management programs and the exercise of delegated authority; provide technical and advisory services to Civil Service Regional Offices and government agencies in the implementation of their personnel programs and evaluation systems.

(12) The Office of Personnel Relations shall provide leadership and assistance in the development and implementation of policies, standards, rules and regulations governing corporate officials and employees in the areas of recruitment, examination, placement, career development, merit and awards systems, position classification and compensation, performance appraisal, employee welfare and benefits, discipline and other aspects of personnel management on the basis of comparable industry practices.

(13) The Office of the Corporate Affairs — . . .

(14) The Office of Retirement Administration — . . .

(15) The Regional and Field Offices. — . . . (Emphases in the original)

Immediately after the foregoing listing of offices of the Commission and their respective functions, the 1987 Revised Administrative Code goes on to provide as follows:

Sec. 17. Organizational Structure. — Each office of the Commission shall be headed by a Director with at least one (1) Assistant Director, and may have such divisions as are necessary to carry out their respective functions. As an independent constitutional body, the Commission may effect chances in the organization as the need arises.

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xxx xxx xxx 3

(Emphasis supplied)

Examination of the foregoing statutory provisions reveals that the OCSS, OPIA and OPR, and as well each of the other Offices listed in Section 16 above, consist of aggregations of Divisions, each of which Divisions is in turn a grouping of Sections. Each Section, Division and Office comprises a group of positions within the agency called the Civil Service Commission, each group being entrusted with a more or less definable function or functions. These functions are related to one another, each of them being embraced by a common or general subject matter. Clearly, each Office is an internal department or organizational unit within the Commission and that accordingly, the OCSS, OPIA and OPR, as well as all the other Offices within the Commission constitute administrative subdivisions of the CSC. Put a little differently, these offices relate to the internal structure of the Commission.

What did Resolution No. 94-3710 of the Commission do? Examination of Resolution No. 94-3710 shows that thereby the Commission re-arranged some of the administrative units (i.e., Offices) within the Commission and, among other things, merged three (3) of them (OCSS, OPIA and OPR) to form a new grouping called the "Research and Development Office (RDO)." The same Resolution renamed some of the Offices of the Commission, e.g., the Office for Human Resource Development (OHRD) was renamed Human Resource Development Office (HRDO); the Office for Central Personnel Records (OCPR) was renamed Management Information Office (MIO). The Commission also re-allocated certain functions moving some functions from one Office to another; e.g., the information technology function of OPM (Office of Planning and Management) was transferred to the newly named Management Information Office (MIO). This re-allocation or re-assignment of some functions carried with it the transfer of the budget earmarked for such function to the Office where the function was transferred. Moreover, the personnel, records, fixtures and equipment that were devoted to the carrying out of such functions were moved to the Offices to where the functions were transferred.

The objectives sought by the Commission in enacting Resolution No. 94-3710 were described in that Resolution in broad terms as "effect[ing] changes in the organization to streamline [the Commission's] operations and improve delivery of service." These changes in internal organization were rendered necessary by, on the one hand, the decentralization and devolution of the Commission's functions effected by the creation of fourteen (14) Regional Offices and ninety-five (95) Field Offices of the Commission throughout the country, to the end that the Commission and its staff may be brought closer physically to the government employees that they are mandated to serve. In the past, its functions had been centralized in the Head Office of the Commission in Metropolitan Manila and Civil Service employees all over the country were compelled to come to Manila for the carrying out of personnel transactions. Upon the other hand, the dispersal of the functions of the Commission to the Regional Offices and the Field Offices attached to various governmental agencies throughout the country makes possible the implementation of new programs of the Commission at its Central Office in Metropolitan Manila.

The Commission's Office Order assigning petitioner de Lima to the CSC Regional Office No. 3 was precipitated by the incumbent Regional Director filing an application for retirement, thus generating a need to find a replacement for him. Petitioner de Lima was being assigned to that Regional Office while the incumbent Regional Director was still there to facilitate her take over of the duties and functions of the incumbent Director. Petitioner de Lima's prior experience as a labor lawyer was also a factor in her assignment to Regional Office No. 3 where public sector unions have been very active. Petitioner Fernandez's assignment to the CSC Regional Office No. 5 had, upon the other hand, been necessitated by the fact that the then incumbent Director in Region V was under investigation and needed to be transferred immediately to the Central Office. Petitioner Fernandez was deemed the most likely designee for Director of Regional Office No. 5 considering that the functions previously assigned to him had been substantially devolved to the Regional Offices such that his reassignment to a Regional Office would result in the least disruption of the operations of the Central Office. 4

It thus appears to the Court that the Commission was moved by quite legitimate considerations of administrative efficiency and convenience in promulgating and implementing its Resolution No. 94-3710 and in assigning petitioner Salvador C. Fernandez to the Regional Office of the Commission in Region V in Legaspi City and petitioner Anicia M. de Lima to the Commission's Regional Office in Region III in San Fernando, Pampanga. It is also clear tothe Court that the changes introduced and formalized through Resolution No. 94-3710 — re-naming of existing Offices; re-arrangement of the groupings of Divisions and Sections composing particular Offices; re-allocation of existing functions (and related personnel; budget, etc.) among the re-arranged Offices — are precisely the kind of internal changes which are referred to in Section 17 (Book V, Title I, Subtitle A, Chapter 3) of the 1987 Revised Administrative Code), quoted above, as "chances in the organization" of the Commission.

Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public offices, something which may be done only by the same legislative authority which had created those public offices in the first place.

The Court is unable, in the circumstances of this case, to accept this argument. The term "public office" is frequently used to refer to the right, authority and duty, created and conferred by law, by which, for a given period either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of government, to be exercised by that individual for the benefit of the public. 5 We consider that Resolution No. 94-3710 has not abolished any public office as that term is used in the law of public officers. 6 It is essential to note that none of the "changes in organization" introduced by Resolution No. 94-3710 carried with it or necessarily involved the termination of the relationship of public employment between the Commission and any of its officers and employees. We find it very difficult to suppose that the 1987 Revised Administrative Code having mentioned fourteen (14) different "Offices" of the Civil Service Commission, meant to freeze those Offices and to cast in concrete, as it were, the internal organization of the commission until it might please Congress to change such internal organization regardless of the ever changing needs of the Civil Service as a whole. To the contrary, the legislative authority had expressly authorized the Commission to carry out "changes in the organization," as the need [for such changes] arises." 7 Assuming, for purposes of argument merely, that legislative authority was necessary to carry out the kinds off changes contemplated in Resolution No. 94-3710 (and the Court is not saying that such authority is necessary), such legislative authority was validly delegated to the Commission by Section 17 earlier quoted. The legislative standards to be observed and respected in the exercise of such delegated authority are set out not only in Section 17 itself (i.e., "as the need arises"), but also in the Declaration of Policies found in Book V, Title I, Subtitle A, Section 1 of the 1987 Revised Administrative Code which required the Civil Service Commission

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as the central personnel agency of the Government [to] establish acareer service, adopt measures to promote — efficiency — [and] responsiveness . . . in the civil service . . . and that personnel functions shall be decentralized, delegating the corresponding authority to the departments, offices and agencies where such functions can be effectively performed. (Emphasis supplied)

II.

We turn to the second claim of petitioners that their right to security of tenure was breached by the respondents in promulgating Resolution No. 94-3710 and ordering petitioners' assignment to the Commission's Regional Offices in Regions III and V. Section 2(3) of Article IX(B) of the 1987 Constitution declared that "no officer or employee of the Civil Service shall be removed or suspended except for cause provided by law." Petitioners in effect contend that they were unlawfully removed from their positions in the OPIA and OPR by the implementation of Resolution No. 94-3710 and that they cannot, without their consent, be moved out to the Regional Offices of the Commission.

We note, firstly, that appointments to the staff of the Commission are not appointments to a specified public office but rather appointments to particular positions or ranks. Thus, a person may be appointed to the position of Director III or Director IV; or to the position of Attorney IV or Attorney V; or to the position of Records Officer I or Records Officer II; and so forth. In the instant case, petitioners were each appointed to the position of Director IV, without specification of any particular office or station. The same is true with respect to the other persons holding the same position or rank of Director IV of the Commission.

Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code recognizes reassignment as a management prerogative vested in the Commission and, for that matter, in any department or agency of government embraced in the civil service:

Sec. 26. Personnel Actions. — . . .

xxx xxx xxx

As used in this Title, any action denoting the movement or progress of personnel in the civil service shall be known as personnel action. Such action shall include appointment through certification, promotion, transfer, re-instatement, re-employment, detail, reassignment, demotion, and separation.All personnel actions shall be in accordance with such rules, standards, and regulations as may be promulgated by the Commission.

xxx xxx xxx

(7) Reassignment. An employee may be re-assigned from one organizational unit to another in the same agency, Provided, That such re-assignment shall not involve a reduction in rank status and salary. (Emphasis supplied)

It follows that the reassignment of petitioners Fernandez and de Lima from their previous positions in OPIA and OPR, respectively, to the Research and Development Office (RDO) in the Central Office of the Commission in Metropolitan Manila and their subsequent assignment from the RDO to the Commission's Regional Offices in Regions V and III had been effected with express statutory authority and did not constitute removals without lawful cause. It also follows that such re-assignment did not involve any violation of the constitutional right of petitioners to security of tenure considering that they retained their positions of Director IV and would continue to enjoy the same rank, status and salary at their new assigned stations which they had enjoyed at the Head Office of the Commission in Metropolitan Manila. Petitioners had not, in other words, acquired a vested right to serve at the Commission's Head Office.

Secondly, the above conclusion is compelled not only by the statutory provisions relevant in the instant case, but also by a long line of cases decided by this Court in respect of different agencies or offices of government.

In one of the more recent of these cases, Department of Education Culture and Sports, etc., et al. v. Court of Appeals, et al., 8 this Court held that a person who had been appointed as "Secondary School Principal II" in the Division of City Schools, District II, Quezon City, National Capital Region, and who had been stationed as High School Principal in the Carlos Albert High School in Quezon for a number of years, could lawfully be reassigned or transferred to the Manuel Roxas High School, also in Quezon City, without demotion in rank or diminution of salry. This Court held:

The aforequoted provision of Republic Act No. 4670 particularly Section 6 thereof which provides that except for cause and in the exigencies of the service no teacher shall be transferred without his consent from one station to another, finds no application in the case at bar as this is predicated upon the theory that the teacher concerned is appointed — not merely assigned — to a particular station. Thus:

The rule pursued by plaintiff only goes so far asthe appointed indicates a specification. Otherwise, the constitutionally ordained security of tenure cannot shield her. In appointments of this nature, this Court has consistently rejected the officer's demand to remain — even as public service dictates that a transfer be made — in a particular station. Judicial attitude toward transfers of this nature is expressed in the following statement in Ibañez, et al. vs. Commission on Elections, et al. (G.R. No. L-26558, April 27, 1967; 19 SCRA 1002 [1967]);

That security of tenure is an essential and constitutionally guaranteed feature of our Civil Service System, is not open to debate. The mantle of its protection extends not only against removals without cause but also against unconsented

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transfer which, as repeatedly enunciatEd, are tantamount to removals which are within the ambit of the fundamental guarantee. However, the availability of that security of tenure necessarily depends, in the first instance, upon the nature of the appointment (Hojilla vs. Marino, 121 Phil. 280 [1965].) Such that the rule which proscribes transfers without consent as anathema to the security of tenure is predicated upon the theory that the officer involved is appointed — not merely assigned — to a particular station(Miclat v. Ganaden, et al., 108 Phil. 439 [1960]; Jaro v. Hon. Valencia, et al., 118 Phil. 728 [1963]). [Brillantes v. Guevarra, 27 SCRA 138 (1969)]

The appointment of Navarro as principal does not refer to any particular station or school. As such, she could be assigned to any station and she is not entitled to stay permanently at any specific school. (Bongbong v. Parado, 57 SCRA 623) When she was assigned to the Carlos Albert High School, it could not have been with the intention to let her stay in said school permanently. Otherwise, her appointment would have so stated. Consequently, she may be assigned to any station or school in Quezon City as the exigencies of public service require even without consent. As this Court ruled inBrillantes v. Guevarra, 27 SCRA 138,143 —

Plaintiff's confident stride falters. She took too loose a view of the applicable jurisprudence. Her refuge behind the mantle of security of tenure guaranteed by the Constitution is not impenetrable. She proceeds upon the assumption that she occupies her station in Sinalang Elementary School by appointment. But her first appointment as Principal merely reads thus: "You are hereby appointed a Principal (Elementary School) in the Bureau of Public Schools, Department of Education", without mentioning her station. She cannot therefore claim security of tenure as Principal of Sinalang Elementary School or any particular station. She may be assigned to any station as exigency of public service requires, even without her consent. She thus has no right of choice. 9 (Emphasis supplied; citation omitted)

In the very recent case of Fernando, et al. v. Hon. Sto. Tomas, etc., et a1., 10 the Court addressed appointments of petitioners as "Mediators-Arbiters in the National Capital Region" in dismissing a challenge on certiorari to resolutions of the CSC and orders of the Secretary of Labor. The Court said:

Petitioners were appointed as Mediator Arbiters in the National Capital Region. They were not, however, appointed to a specific station or particular unit of the Department of Labor in the National Capital Region (DOLE-NCR). Consequently, they can always be reassigned from one organizational unit to another of the same agency where, in the opinion of respondent Secretary, their services may be used more effectively. As such they can neither claim a vested right to the station to which they were assigned nor to security of tenure thereat. As correctly observed by the Solicitor General, petitioners' reassignment is not a transfer for they were not removed from their position as med-arbiters. They were not given new appointments to new positions. It indubitably follows, therefore, that Memorandum Order No. 4 ordering their reassignment in the interest of the service is legally in order. 11 (Emphases supplied)

In Quisumbing v. Gumban, 12 the Court, dealing with an appointment in the Bureau of Public Schools of the Department of Education, Culture and Sports, ruled as follows:

After a careful scrutiny of the records, it is to be underscored that the appointment of private respondent Yap is simply that of a District Supervisor of the Bureau of Public Schools which does not indicate a specific station(Rollo, p. 13). A such, she could be assigned to any station and she is no entitled to stay permanently at any specific station (Bongbong v. Parado, 57 SCRA 623 [1974]; Department of Education, Culture and Sports v. Court of Appeals [G.R. 81032, March 22, 1990] citing Brillantes v. Guevarra [27 SCRA 138 [1969]). 13

Again, in Ibañez v. Commission on Elections, 14 the Court had before it petitioners' appointments as "Election Registrars in the Commission of Elections," without any intimation to what city, municipality or municipal district they had been appointed as such. 15 The Court held that since petitioners "were not appointed to, and consequently not entitled to any security of tenure or permanence in, any specific station," "on general principles, they [could] be transferred as the exigencies of the service required," and that they had no right to complain against any change in assignment. The Court further held that assignment to a particular station after issuance of the appointment was not necessary to complete such appointment:

. . . . We cannot subscribe to the theory that an assignment to a particular station, in the light of the terms of the appointments in question, was necessary to complete the said appointments. The approval thereof by the Commissioner of Civil Service gave those appointments the stamp of finality. With the view that the respondent Commission then took of its power in the premises and the demand of the mission it set out to accomplish with the appointments it extended, said appointments were definitely meant to be complete as then issued. The subsequent assignment of the appointees thereunder that the said respondent Commission held in reserve to be exercised as the needs of each locality justified did not in any way detract from the perfection attained by the appointments beforehand. And the respective appointees were entitled only to such security of tenure as the appointment papers concerned actually conferred — not in that of any place to which they may have been subsequently assigned. . . . As things stand, in default of any particular station stated in their respective appointments, no security of tenure can be asserted by the petitioners on the basis of the mere assignments which were given to them. A contrary rule will erase altogether the demarcation line we have repeatedly drawn between appointment and assignment as two distinct concepts in the law of public officers.16 (Emphases supplied)

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The petitioner, in Miclat v. Ganaden, 17 had been appointed as a "Welfare Office Incharge, Division of Urban, Rural and Community Administration, Social Welfare Administration." She was assigned as Social Welfare Incharge of the Mountain Province, by an office order of the Administrator, Social Welfare Administration. After a little more than a year; petitioner was assigned elsewhere and respondent Ganaden transferred to petitioner's first station in Baguio City. The Court ruled that petitioner was not entitled to remain in her first station, In Jaro v. Hon.Valencia, et al., 18 petitioner Dr. Jaro had been appointed "Physician in the Municipal Maternity and Charity Clinics, Bureau of Hospitals." He was first assigned to the Municipal Maternity and Charity Clinics in Batulati, Davao, and later to the corresponding clinic in Saug, Davao and then to Catil, Davao. He was later assigned to the Municipality of Padada, also of Davao Province. He resisted his last assignment and brought mandamus against the Secretary of Health to compel the latter to return him to his station in Catil, Davao as Municipal Health Officer thereof. The Court, applying Miclat v. Ganaden dismissed this Petition holding that his appointment not being to any specific station but as a physician in the Municipal Maternity and Charity Clinics, Bureau of Hospitals, he could be transferred or assigned to any station where, in the opinion of the Secretary of Health, his services may be utilized more effectively. 19

Also noteworthy is Sta. Maria v. Lopez 20 which involved the appointment of petitioner Sta. Maria as "Dean, College of Education, University of the Philippines." Dean Sta. Maria was transferred by the President of the University of the Philippines to the Office of the President, U.P., without demotion in rank or salary, thereby acceding to the demands of student activists who were boycotting their classes in the U.P. College of Education. Dean Sta. Maria assailed his transfer as an illegal and unconstitutional removal from office. In upholding Dean Sta. Maria's claim, the Court, speaking through Mr. Justice Sanchez, laid down the applicable doctrine in the following terms:

4. Concededly, transfers there are which do not amount to removal. Some such transfer can be effected without the need for charges being preferred, without trial or hering, and even without the consent of the employee.

The clue to such transfers may be found in the "nature of the appointment." Where the appointment does not indicate a specific station, an employee may be transferred or reassigned provided the transfer affects no substantial change in title, rank and salary. Thus one who is appointed "principal in the Bureau of Public Schools" and is designated to head a pilot school may be transferred to the post of principal of another school.

And the rule that outlaws unconsented transfers as anathema to security of tenure applies only to an officer who is appointed — not merely assigned — to a particular station. Such a rule does not prescribe a transfer carried out under a specific statute that empowers the head of an agency to periodically reassign the employees and officers in order to improve the service of the agency. The use of approved techniques or methods in personnel management to harness the abilities of employees to promote optimum public service cannot-be objected to. . . .

5. The next point of inquiry is whether or not Administrative Order 77 would stand the test of validityvis-a-vis the principles just enunciated.

xxx xxx xxx

To be stressed at this point, however, is that the appointment of Sta. Maria is that of "Dean, College of Education, University of the Philippines." He is not merely a dean "in the university." His appointment is to a specific position; and, more importantly, to a specific station. 21 (Citations omitted; emphases supplied)

For all the foregoing we conclude that the reassignment of petitioners Fernandez and de Lima from their stations in the OPIA and OPR, respectively, to the Research Development Office (RDO) and from the RDO to the Commissions Regional Offices in Regions V and III, respectively, without their consent, did not constitute a violation of their constitutional right to security of tenure.

WHEREFORE, the Petition for Certiorari, Prohibition and Mandamus with Prayer for Writ of Preliminary Injunction or Temporary Restraining Order is hereby DISMISSED. The Temporary Restraining Order issued by this Court on 27 September 1994 is hereby LIFTED. Costs against petitioners.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo Quiason, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 110544 October 17, 1995

REYNALDO V. TUANDA, Mayor of the Municipality of Jimalalud, Negros Oriental, HERMINIGILDO FABURADA, (former Vice-Mayor), SANTOS A. VILLANUEVA, Incumbent Member of the Sangguniang Bayan, MANUEL LIM, NICANOR R. AGOSTO, ERENIETA K. MENDOZA MAXIMINO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES, and FORMER MEMBERS OF THE SANGGUNIANG BAYAN OF JIMALALUD, NEGROS ORIENTAL, petitioners,

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vs.THE HONORABLE SANDIGANBAYAN, (THIRD DIVISION), BARTOLOME BINAOHAN and DELIA ESTRELLANES, respondents.

KAPUNAN, J.:

Petitioners institute this special civil action for certiorari and prohibition under Rule 65 of the Revised Rules of Court to set aside the resolution of the Sandiganbayan dated 17 February 1992 and its orders dated 19 August 1992 and 13 May 1993 in Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." denying petitioners' motion for suspension of their arraignment.

The present controversy arose from the following antecedents:

On 9 February 1989, private respondents Delia Estrellanes and Bartolome Binaohan were designated as industrial labor sectoral representative and agricultural labor sectoral representative respectively, for the Sangguniang Bayan of Jimalalud, Province of Negros Oriental by then Secretary Luis T. Santos of the Department of Local Government. Private respondents Binaohan and Estrellanes took their oath of office on 16 February 1989 and 17 February 1989, respectively.

Subsequently, petitioners filed an undated petition with the Office of the President for review and recall of said designations. The latter, however, in a letter dated 20 March 1989, denied the petition and enjoined Mayor Reynaldo Tuanda to recognize private respondents as sectoral representatives.

On 4 May 1990, private respondents filed a petition for mandamus with the Regional Trial Court of Negros Oriental, Branch 35, docketed as Special Civil Action No. 9661, for recognition as members of the Sangguniang Bayan. It was dismissed on 23 July 1991.

Thereafter, on 20 June 1991, petitioners filed an action with the Regional Trial Court of Dumaguete City to declare null and void the designations of private respondents as sectoral representatives, docketed as Civil Case No. 9955 entitled "Reynaldo Tuanda, et al. versus Secretary of the Department of Local Government, et al."

On 21 July 1991, an information was filed before the Sandiganbayan, docketed as Criminal Case No. 16936 entitled "People of the Philippines versus Reynaldo Tuanda, et al." charging petitioners thus:

INFORMATION

The undersigned Special Prosecution Officer of the Special Prosecutor, hereby accuses REYNALDO V. TUANDA, HERMENEGILDO G. FABURADA, MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO VIERNES, HACUBINA V. SERILLO, and SANTOS A. VILLANUEVA of Violation of Section 3(e) of R.A. No. 3019, as amended, committed as follows:

That during the period from February 1989 to February 1991 and subsequent thereto, in the Municipality of Jimalalud, Negros Oriental, and within the jurisdiction of this Honorable Court, accused, all public officers, Mayor REYNALDO V. TUANDA, Vice-Mayor HERMENEGILDO G. FABURADA, Sangguniang Members MANUEL LIM, NICANOR P. AGOSTO, ERENIETA K. MENDOZA, MAXIMO A. VIERNES, HACUBINA V. SERILLO, ILUMINADO D. ESTRELLANES and SANTOS A. VILLANUEVA while in the performance of their official functions and taking advantage of their public positions, with evident bad faith, manifest partiality, and conspiring and confederating with each other did, then and there, wilfully and unlawfully cause undue injury to Sectoral Members Bartolome M. Binaohan and Delia T. Estrellanes by refusing to pay despite demand the amount of NINETY FIVE THOUSAND THREE HUNDRED FIFTY PESOS (P95,350.00) and ONE HUNDRED EIGHT THOUSAND NINE HUNDRED PESOS (P108,900.00) representing respectively their per diems, salaries and other privileges and benefits, and such undue injury continuing to the present to the prejudice and damage of Bartolome Binaohan and Delia Estrellanes.

CONTRARY TO LAW. 1

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

On 16 January 1992, the Regional Trial Court rendered a decision declaring null and void ab initio the designations issued by the Department of Local Government to the private respondents as sectoral representatives for having been done in violation of Section 146 (2) of B.P. Blg. 337, otherwise known as the Local Government Code. 3

The trial court expounded thus:

The Supreme Court in the case of Johnny D. Supangan Jr. v. Luis T. Santos, et al., G.R. No. 84663, along with 7 companion cases of similar import, (G.R. Nos. 05012, 87601, 87602, 87792, 87935, 88072, and 90205) all promulgated on August 24, 1990, ruled that:

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B.P. Blg. 337 explicitly required that before the President (or the Secretary of the Department of Local Government) may appoint members of the local legislative bodies to represent the Industrial and Agricultural Labor Sectors, there must be a determination to be made by the Sanggunian itself that the said sectors are of sufficient number in the city or municipality to warrant representation after consultation with associations and persons belonging to the sector concerned.

The Supreme Court further ruled —

For that matter, the Implementing Rules and Regulations of the Local Government Code even prescribe the time and manner by which such determination is to be conducted by the Sanggunian.

Consequently, in cases where the Sanggunian concerned has not yet determined that the Industrial and Agricultural Labor Sectors in their particular city or municipality are of sufficient number to warrant representation, there will absolutely be no basis for the designation/appointments.

In the process of such inquiry as to the sufficiency in number of the sector concerned to warrant representation, the Sanggunian is enjoined by law (B.P. Blg. 337) to consult with associations and persons belonging to the sector concerned. Consultation with the sector concerned is made a pre-requisite. This is so considering that those who belong to the said sector are the ones primarily interested in being represented in the Sanggunian. In the same aforecited case, the Supreme Court considers such prior determination by the Sanggunian itself (not by any other person or body) as a condition sine qua non to a valid appointment or designation.

Since in the present case, there was total absence of the required prior determination by the Sangguniang Bayan of Jimalalud, this Court cannot help but declare the designations of private defendants as sectoral representatives null and void.

This verdict is not without precedence. In several similar cases, the Supreme Court invariably nullified the designations where the requirements of Sec. 146 (2), B.P. Blg. 337 were not complied with. Just to cite one case, the Supreme Court ruled:

There is no certification from the Sangguniang Bayan of Valenzuela that the sectors concerned are of sufficient number to warrant representation and there was no consultation whatsoever with the associations and persons belonging to the Industrial and Agricultural Labor Sectors. Therefore, the appointment of private respondents Romeo F. Bularan and Rafael Cortez are null and void (Romeo Llanado, et al. v. Hon. Luis Santos, et al., G.R. No. 86394, August 24, 1990). 4

Private respondents appealed the aforestated decision to the Court of Appeals, docketed as CA-G.R. CV No. 36769, where the same is currently pending resolution.

Meanwhile, on 17 February 1992, respondent Sandiganbayan issued a resolution denying the motion for suspension of proceedings filed by petitioners. Said respondent Sandiganbayan:

Despite the pendency of Civil Case No. 9955 of the Regional Trial Court of Negros Oriental, it appears, nevertheless, that the private complainants have been rendering services on the basis of their respective appointments as sectoral members of the Sangguniang Bayan of the Municipality of Jimalalud, Negros Oriental; and that their said appointments enjoy the presumption of regularity. Having rendered such services, the private complainants are entitled to the salaries attached to their office. Even assuming arguendo that the said Regional Trial Court shall later decide that the said appointments of the private complainants are null and void, still the private complainants are entitled to their salaries and compensation for service they have actually rendered, for the reason that before such judicial declaration of nullity, the private complainants are considered at least de facto public officers acting as such on the basis of apparently valid appointments issued by competent authorities. In other words, regardless of the decision that may be rendered in Civil Case No. 9955, the private complainants are entitled to their withheld salaries for the services they have actually rendered as sectoral representatives of the said Sangguniang Bayan. Hence, the decision that may be rendered by the Regional Trial Court in Civil Case No. 9955 would not be determinative of the innocence or guilt of the accused.

WHEREFORE, the subject Petition for the Suspension of Proceedings in Virtue of Prejudicial Question filed by the accused through counsel, is hereby DENIED for lack of merit.

SO ORDERED. 5

Petitioners filed a motion for reconsideration of the aforementioned resolution in view of the decision promulgated by the trial court nullifying the appointments of private respondents but it was, likewise, denied in an order issued by respondent Sandiganbayan on 19 August 1992 on the justification that the grounds stated in the said motion were a mere rehash of petitioners' original motion to hold the case in abeyance. 6 The dispositive portion of its order reads as follows:

WHEREFORE, in view of the foregoing, the arraignment of the accused which was scheduled today is cancelled. Mayor Reynaldo Tuanda, Hermenegildo Faburada, Nicanor P. Agosto, Erenieta K. Mendoza, Hacubina V. Serillo and

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Iluminado Estrellanes are, however, hereby ordered to show cause in writing within ten (10) days from service hereof why they should not be cited for contempt of court for their failure to appear in court today for arraignment.

In case of an adverse resolution on the motion to quash which is to be filed by the counsel for the defense, set this case for arraignment, pre-trial and trial on January 4 & 5, 1993, on all dates the trial to start at 8:30 o'clock in the morning.

SO ORDERED. 7

On 19 February 1993, respondent Sandiganbayan issued an order holding consideration of all incidents pending the issuance of an extended resolution. 8

No such resolution, however, was issued and in its assailed order dated 13 May 1992, respondent Sandiganbayan set the arraignment of petitioners on 30 June 1993. The dispositive portion of the order reads:

WHEREFORE, considering the absence of the accused from the scheduled hearing today which We deem to be excusable, reset this case for arraignment on June 30, 1993 and for trial on the merits on June 30 and July 1 and 2, 1993, on all dates the trial to start at 8:30 o'clock in the morning.

Give proper notice to the accused and principal counsel, Atty. Alfonso Briones. Considering that the accused come all the way from Himalalud, Negros Oriental, no postponement will be allowed.

SO ORDERED. 9

Hence, this special civil action for certiorari and prohibition where petitioners attribute to respondent Sandiganbayan the following errors:

A. The Respondent Court committed grave abuse of discretion in denying petitioners' motions for the suspension of the proceedings in Criminal Case No. 16936 in spite of the pendency of a prejudicial issue before the Court of Appeals in CA-G.R. CV No. 36769;

B. The Respondent Court acted without or in excess of jurisdiction in refusing to suspend the proceedings that would entail a retrial and rehearing by it of the basic issue involved, i.e., the validity of the appointments of private respondents and their entitlement to compensation which is already pending resolution by the Court of Appeals in C.A. G.R. CV No. 36769; and

C. The Respondent Court committed grave abuse of discretion and/or acted without or in excess of jurisdiction in effectively allowing petitioners to be prosecuted under two alternative theories that private respondents are de jure and/or de facto officers in violation of petitioners' right to due process. 10

In sum, the only issue in the case at bench is whether or not the legality or validity of private respondents' designation as sectoral representatives which is pending resolution in CA-G.R. No. 36769 is a prejudicial question justifying suspension of the proceedings in the criminal case against petitioners.

A prejudicial question is one that must be decided before any criminal prosecution may be instituted or before it may proceed (see Art. 36, Civil Code) because a decision on that point is vital to the eventual judgment in the criminal case. Thus, the resolution of the prejudicial question is a logical antecedent of the issues involved in said criminal case. 11

A prejudicial question is defined as that which arises in a case the resolution of which is a logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. The prejudicial question must be determinative of the case before the court but the jurisdiction to try and resolve the question must be lodged in another court or tribunal. 12 It is a question based on a fact distinct and separate from "the crime but so intimately connected with it that it determines the guilt or innocence of the accused, and for it to suspend the criminal action, it must appear not only that said case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be determined. It comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case." 13

The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. 14 It has two essential elements:

(a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and

(b) the resolution of such issue determines whether or not the criminal action may proceed. 15

Applying the foregoing principles to the case at bench, we find that the issue in the civil case, CA-G.R. CV No. 36769, constitutes a valid prejudicial question to warrant suspension of the arraignment and further proceedings in the criminal case against petitioners.

All the elements of a prejudicial question are clearly and unmistakably present in this case. There is no doubt that the facts and issues involved in the civil action (No. 36769) and the criminal case (No. 16936) are closely related. The filing of the criminal case was premised

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on petitioners' alleged partiality and evident bad faith in not paying private respondents' salaries and per diems as sectoral representatives, while the civil action was instituted precisely to resolve whether or not the designations of private respondents as sectoral representatives were made in accordance with law.

More importantly, ,the resolution of the civil case will certainly determine if there will still be any reason to proceed with the criminal action.

Petitioners were criminally charged under the Anti-Graft & Corrupt Practices Act (RA 3019, sec, 3[e]) due to their refusal, allegedly in bad faith and with manifest partiality, to pay private respondents' salaries as sectoral representatives. This refusal, however, was anchored on petitioners' assertion that said designations were made in violation of the Local Government Code (B.P. Blg. 337) and thus, were null and void. Therefore, should the Court of Appeals uphold the trial court's decision declaring null and void private respondents' designations as sectoral representatives for failure to comply with the provisions of the Local Government Code (B.P. Blg. 337, sec. 146[2]), the charges against petitioners would no longer, so to speak, have a leg to stand on. Petitioners cannot be accused of bad faith and partiality there being in the first place no obligation on their part to pay private respondents' claims. Private respondents do not have any legal right to demand salaries, per diems and other benefits. In other words, the Court of Appeals' resolution of the issues raised in the civil action will ultimately determine whether or not there is basis to proceed with the criminal case.

Private respondents insist that even if their designations are nullified, they are entitled to compensation for actual services rendered. 16 We disagree. As found by the trial court and as borne out by the records, from the start, private respondents' designations as sectoral representatives have been challenged by petitioners. They began with a petition filed with the Office of the President copies of which were received by private respondents on 26 February 1989, barely eight (8) days after they took their oath of office. 17 Hence, private respondents' claim that they have actually rendered services as sectoral representatives has not been established.

Finally, we find unmeritorious respondent Sandiganbayan's thesis that even in the event that private respondents' designations are finally declared invalid, they may still be considered de facto public officers entitled to compensation for services actually rendered.

The conditions and elements of de facto officership are the following:

1) There must be a de jure office;

2) There must be color of right or general acquiescence by the public; and

3) There must be actual physical possession of the office in good faith. 18

One can qualify as a de facto officer only if all the aforestated elements are present. There can be no de factoofficer where there is no de jure office, although there may be a de facto officer in a de jure office. 19

WHEREFORE, the resolution dated 17 February 1992 and orders dated 19 August 1992 and 13 May 1993 of respondent Sandiganbayan in Criminal Case No. 16936 are hereby SET ASIDE. Respondent Sandiganbayan is enjoined from proceeding with the arraignment and trial of petitioners in Criminal Case No. 16936 pending final resolution of CA-G.R. CV No. 36769.

SO ORDERED.

Padilla, Davide, Jr. and Bellosillo, JJ., concur.

Hermosisima, Jr., J., took no part.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 116033 February 26, 1997

ALFREDO L. AZARCON, petitioner, vs.SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES and JOSE C. BATAUSA, respondents.

PANGANIBAN, J.:

Public Officers and Election Laws 31

Does the Sandiganbayan have jurisdiction over a private individual who is charged with malversation of public funds as a principal after the said individual had been designated by the Bureau of Internal Revenue as a custodian of distrained property? Did such accused become a public officer and therefore subject to the graft court's jurisdiction as a consequence of such designation by the BIR?

These are the main questions in the instant petition for review of Respondent Sandiganbayan's Decision 1 in Criminal Case No. 14260 promulgated on March 8, 1994, convicting petitioner of malversation of public funds and property, and Resolution 2 dated June 20, 1994, denying his motion for new trial or reconsideration thereof.

The Facts

Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling "dirt and ore." 3 His services were contracted by the Paper Industries Corporation of the Philippines (PICOP) at its concession in Mangagoy, Surigao del Sur. Occasionally, he engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the former's premises. 4 From this set of circumstances arose the present controversy.

. . . It appears that on May 25, 1983, a Warrant of Distraint of Personal Property was issued by the Main Office of the Bureau of Internal Revenue (BIR) addressed to the Regional Director (Jose Batausa) or his authorized representative of Revenue Region 10, Butuan City commanding the latter to distraint the goods, chattels or effects and other personal property of Jaime Ancla, a sub-contractor of accused Azarcon and, a delinquent taxpayer. The Warrant of Garnishment was issued to accused Alfredo Azarcon ordering him to transfer, surrender, transmit and/or remit to BIR the property in his possession owned by taxpayer Ancla. The Warrant of Garnishment was received by accused Azarcon on June 17, 1985. 5

Petitioner Azarcon, in signing the "Receipt for Goods, Articles, and Things Seized Under Authority of the National Internal Revenue," assumed the undertakings specified in the receipt the contents of which are reproduced as follows:

(I), the undersigned, hereby acknowledge to have received from Amadeo V. San Diego, an Internal Revenue Officer, Bureau of Internal Revenue of the Philippines, the following described goods, articles, and things:

Kind of property — Isuzu dump truckMotor number — E120-229598Chassis No. — SPZU50-1772440Number of CXL — 6Color — BlueOwned By — Mr. Jaime Ancla

the same having been this day seized and left in (my) possession pending investigation by the Commissioner of Internal Revenue or his duly authorized representative. (I) further promise that (I) will faithfully keep, preserve, and, to the best of (my) ability, protect said goods, articles, and things seized from defacement, demarcation, leakage, loss, or destruction in any manner; that (I) will neither alter nor remove, nor permit others to alter or remove or dispose of the same in any manner without the express authority of the Commissioner of Internal Revenue; and that (I) will produce and deliver all of said goods, articles, and things upon the order of any court of the Philippines, or upon demand of the Commissioner of Internal Revenue or any authorized officer or agent of the Bureau of Internal Revenue. 6

Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIR's Regional Director for Revenue Region 10 B, Butuan City stating that

. . . while I have made representations to retain possession of the property and signed a receipt of the same, it appears now that Mr. Jaime Ancla intends to cease his operations with us. This is evidenced by the fact that sometime in August, 1985 he surreptitiously withdrew his equipment from my custody. . . . In this connection, may I therefore formally inform you that it is my desire to immediately relinquish whatever responsibilities I have over the above-mentioned property by virtue of the receipt I have signed. This cancellation shall take effect immediately. . . . 7

Incidentally, the petitioner reported the taking of the truck to the security manager of PICOP, Mr. Delfin Panelo, and requested him to prevent this truck from being taken out of the PICOP concession. By the time the order to bar the truck's exit was given, however, it was too late. 8

Regional Director Batausa responded in a letter dated May 27, 1986, to wit:

An analysis of the documents executed by you reveals that while you are (sic) in possession of the dump truck owned by JAIME ANCLA, you voluntarily assumed the liabilities of safekeeping and preserving the unit in behalf of the Bureau of Internal Revenue. This is clearly indicated in the provisions of the Warrant of Garnishment which you have signed, obliged and committed to surrender and transfer to this office. Your failure therefore, to observe said provisions does not relieve you of your responsibility. 9

Thereafter, the Sandiganbayan found that

On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of Revenue Region 10 B, Butuan City, sent a progress report to the Chief of the Collection Branch of the surreptitious taking of the dump truck and that Ancla was renting out the truck to a certain contractor by the name of Oscar Cueva at PICOP (Paper Industries Corporation of the

Public Officers and Election Laws 32

Philippines, the same company which engaged petitioner's earth moving services), Mangagoy, Surigao del Sur. She also suggested that if the report were true, a warrant of garnishment be reissued against Mr. Cueva for whatever amount of rental is due from Ancla until such time as the latter's tax liabilities shall be deemed satisfied. . . However, instead of doing so, Director Batausa filed a letter-complaint against the (herein Petitioner) and Ancla on 22 January 1988, or after more than one year had elapsed from the time of Mrs. Calo's report. 10

Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint . . . to the Office of the Tanodbayan" on May 18, 1988. He was deputized Tanodbayan prosecutor and granted authority to conduct preliminary investigation on August 22, 1988, in a letter by Special Prosecutor Raul Gonzales approved by Ombudsman (Tanodbayan) Conrado Vasquez. 11

Along with his co-accused Jaime Ancla, Petitioner Azarcon was charged before the Sandiganbayan with the crime of malversation of public funds or property under Article 217 in relation to Article 222 of the Revised Penal Code (RPC) in the following Information 12 filed on January 12, 1990, by Special Prosecution Officer Victor Pascual:

That on or about June 17, 1985, in the Municipality of Bislig, Province of Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, accused Alfredo L. Azarcon, a private individual but who, in his capacity as depository/administrator of property seized or deposited by the Bureau of Internal Revenue, having voluntarily offered himself to act as custodian of one Isuzu Dumptruck (sic) with Motor No. E120-22958, Chasis No. SPZU 50-1772440, and number CXL-6 and was authorized to be such under the authority of the Bureau of Internal Revenue, has become a responsible and accountable officer and said motor vehicle having been seized from Jaime C. Ancla in satisfaction of his tax liability in the total sum of EIGHTY THOUSAND EIGHT HUNDRED THIRTY ONE PESOS and 59/100 (P80,831.59) became a public property and the value thereof as public fund, with grave abuse of confidence and conspiring and confederating with said Jaime C. Ancla, likewise, a private individual, did then and there wilfully, (sic) unlawfully and feloniously misappropriate, misapply and convert to his personal use and benefit the aforementioned motor vehicle or the value thereof in the aforestated amount, by then and there allowing accused Jaime C. Ancla to remove, retrieve, withdraw and tow away the said Isuzu Dumptruck (sic) with the authority, consent and knowledge of the Bureau of Internal Revenue, Butuan City, to the damage and prejudice of the government in the amount of P80,831.59 in a form of unsatisfied tax liability.

CONTRARY TO LAW.

The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14, 1991, alleging that: (1) the petitioner never appeared in the preliminary investigation; and (2) the petitioner was not a public officer, hence a doubt exists as to why he was being charged with malversation under Article 217 of the Revised Penal Code. 13The Sandiganbayan granted the motion for reinvestigation on May 22, 1991. 14 After the reinvestigation, Special Prosecution Officer Roger Berbano, Sr., recommended the "withdrawal of the information" 15 but was "overruled by the Ombudsman." 16

A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the Sandiganbayan did not have jurisdiction over the person of the petitioner since he was not a public officer. 17 On May 18, 1992; the Sandiganbayan denied the motion. 18

When the prosecution finished presenting its evidence, the petitioner then filed a motion for leave to file demurrer to evidence which was denied on November 16, 1992, "for being without merit." 19 The petitioner then commenced and finished presenting his evidence on February 15, 1993.

The Respondent Court's Decision

On March 8, 1994, Respondent Sandiganbayan 20 rendered a Decision, 21 the dispositive portion of which reads:

WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY beyond reasonable doubt as principal of Malversation of Public Funds defined and penalized under Article 217 in relation to Article 222 of the Revised Penal Code and, applying the Indeterminate Sentence Law, and in view of the mitigating circumstance of voluntary surrender, the Court hereby sentences the accused to suffer the penalty of imprisonment ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor in its maximum period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of Reclusion Temporal. To indemnify the Bureau of Internal Revenue the amount of P80,831.59; to pay a fine in the same amount without subsidiary imprisonment in case of insolvency; to suffer special perpetual disqualification; and, to pay the costs.

Considering that accused Jaime Ancla has not yet been brought within the jurisdiction of this Court up to this date, let this case be archived as against him without prejudice to its revival in the event of his arrest or voluntary submission to the jurisdiction of this Court.

SO ORDERED.

Petitioner, through new counsel, 22 filed a motion for new trial or reconsideration on March 23, 1994, which was denied by the Sandiganbayan in its Resolution 23 dated December 2, 1994.

Hence, this petition.

The Issues

Public Officers and Election Laws 33

The petitioner submits the following reasons for the reversal of the Sandiganbayan's assailed Decision and Resolution:

I. The Sandiganbayan does not have jurisdiction over crimes committed solely by private individuals.

II. In any event, even assuming arguendo that the appointment of a private individual as a custodian or a depositary of distrained property is sufficient to convert such individual into a public officer, the petitioner cannot still be considered a public officer because:

[A]

There is no provision in the National Internal Revenue Code which authorizes the Bureau of Internal Revenue to constitute private individuals as depositaries of distrained properties.

[B]

His appointment as a depositary was not by virtue of a direct provision of law, or by election or by appointment by a competent authority.

III. No proof was presented during trial to prove that the distrained vehicle was actually owned by the accused Jaime Ancla; consequently, the government's right to the subject property has not been established.

IV. The procedure provided for in the National Internal Revenue Code concerning the disposition of distrained property was not followed by the B.I.R., hence the distraint of personal property belonging to Jaime C. Ancla and found allegedly to be in the possession of the petitioner is therefore invalid.

V. The B.I.R. has only itself to blame for not promptly selling the distrained property of accused Jaime C. Ancla in order to realize the amount of back taxes owed by Jaime C. Ancla to the Bureau. 24

In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the subject matter of the controversy. Corollary to this is the question of whether petitioner can be considered a public officer by reason of his being designated by the Bureau of Internal Revenue as a depositary of distrained property.

The Court's Ruling

The petition is meritorious.

Jurisdiction of the Sandiganbayan

It is hornbook doctrine that in order "(to) ascertain whether a court has jurisdiction or not, the provisions of the law should be inquired into." 25 Furthermore, "the jurisdiction of the court must appear clearly from the statute law or it will not be held to exist. It cannot be presumed or implied." 26 And for this purpose in criminal cases, "the jurisdiction of a court is determined by the law at the time of commencement of the action." 27

In this case, the action was instituted with the filing of this information on January 12, 1990; hence, the applicable statutory provisions are those of P.D. No. 1606, as amended by P.D. No. 1861 on March 23, 1983, but prior to their amendment by R.A. No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No. 1606 provided that:

Sec. 4. Jurisdiction. — The Sandiganbayan shall exercise:

(a) Exclusive original jurisdiction in all cases involving:

(1) Violations of Republic Act No. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code;

(2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00: PROVIDED, HOWEVER, that offenses or felonies mentioned in this paragraph where the penalty prescribed by law does not exceed prision correccional or imprisonment for six (6) years or a fine of P6,000.00 shall be tried by the proper Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court and Municipal Circuit Trial Court.

Public Officers and Election Laws 34

xxx xxx xxx

In case private individuals are charged as co-principals, accomplices or accessories with the public officers or employees, including those employed in government-owned or controlled corporations, they shall be tried jointly with said public officers and employees.

xxx xxx xxx

The foregoing provisions unequivocally specify the only instances when the Sandiganbayan will have jurisdiction over a private individual, i.e. when the complaint charges the private individual either as a co-principal, accomplice or accessory of a public officer or employee who has been charged with a crime within its jurisdiction.

Azarcon: A Public Officer or A Private Individual?

The Information does not charge petitioner Azarcon of being a co-principal, accomplice or accessory to a public officer committing an offense under the Sandiganbayan's jurisdiction. Thus, unless petitioner be proven a public officer, the Sandiganbayan will have no jurisdiction over the crime charged. Article 203 of the RPC determines who are public officers:

Who are public officers. — For the purpose of applying the provisions of this and the preceding titles of the book, any person who, by direct provision of the law, popular election, popular election or appointment by competent authority, shall take part in the performance of public functions in the Government of the Philippine Islands, or shall perform in said Government or in any of its branches public duties as an employee, agent, or subordinate official, of any rank or classes, shall be deemed to be a public officer.

Thus,

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

(1) Taking part in the performance of public functions in the government, or

Performing in said Government or any of its branches public duties as an employee, agent, or subordinate official, of any rank or class; and

(2) That his authority to take part in the performance of public functions or to perform public duties must be —

a. by direct provision of the law, or

b. by popular election, or

c. by appointment by competent authority. 28

Granting arguendo that the petitioner, in signing the receipt for the truck constructively distrained by the BIR, commenced to take part in an activity constituting public functions, he obviously may not be deemed authorized by popular election. The next logical query is whether petitioner's designation by the BIR as a custodian of distrained property qualifies as appointment by direct provision of law, or by competent authority. 29 We answer in the negative.

The Solicitor General contends that the BIR, in effecting constructive distraint over the truck allegedly owned by Jaime Ancla, and in requiring Petitioner Alfredo Azarcon who was in possession thereof to sign a pro forma receipt for it, effectively "designated" petitioner a depositary and, hence, citing U.S. vs. Rastrollo, 30 a public officer. 31This is based on the theory that

(t)he power to designate a private person who has actual possession of a distrained property as a depository of distrained property is necessarily implied in the BIR's power to place the property of a delinquent tax payer (sic) in distraint as provided for under Sections 206, 207 and 208 (formerly Sections 303, 304 and 305) of the National Internal Revenue Code, (NIRC) . . . . 32

We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us simply because the facts therein are not identical, similar or analogous to those obtaining here. While the cited case involved a judicialdeposit of the proceeds of the sale of attached property in the hands of the debtor, the case at bench dealt with the BIR's administrative act of effecting constructive distraint over alleged property of taxpayer Ancla in relation to his back taxes, property which was received by Petitioner Azarcon. In the cited case, it was clearly within the scope of that court's jurisdiction and judicial power to constitute the judicial deposit and give "the depositary a character equivalent to that of a public official." 33 However, in the instant case, while the BIR had authority to require Petitioner Azarcon to sign a receipt for the distrained truck, the NIRC did not grant it power to appoint Azarcon a public officer.

It is axiomatic in our constitutional framework, which mandates a limited government, that its branches and administrative agencies exercise only that power delegated to them as "defined either in the Constitution or in legislation or in both." 34 Thus, although the "appointing power is the exclusive prerogative of the President, . . ."35 the quantum of powers possessed by an administrative agency forming part of the executive branch will still be limited to that "conferred expressly or by necessary or fair implication" in its enabling act. Hence, "(a)n administrative officer, it has been held, has only such powers as are expressly granted to him and those necessarily implied

Public Officers and Election Laws 35

in the exercise thereof." 36 Corollarily, implied powers "are those which are necessarily included in, and are therefore of lesser degree than the power granted. It cannot extend to other matters not embraced therein, nor are not incidental thereto." 37 For to so extend the statutory grant of power "would be an encroachment on powers expressly lodged in Congress by our Constitution." 38 It is true that Sec. 206 of the NIRC, as pointed out by the prosecution, authorizes the BIR to effect a constructive distraint by requiring "any person" to preserve a distrained property, thus:

xxx xxx xxx

The constructive distraint of personal property shall be effected by requiring the taxpayer or any person having possession or control of such property to sign a receipt covering the property distrained and obligate himself to preserve the same intact and unaltered and not to dispose of the same in any manner whatever without the express authority of the Commissioner.

xxx xxx xxx

However, we find no provision in the NIRC constituting such person a public officer by reason of such requirement. The BIR's power authorizing a private individual to act as a depositary cannot be stretched to include the power to appoint him as a public officer. The prosecution argues that "Article 222 of the Revised Penal Code . . . defines the individuals covered by the term 'officers' under Article 217 39 . . ." of the same Code. 40 And accordingly, since Azarcon became "a depository of the truck seized by the BIR" he also became a public officer who can be prosecuted under Article 217 . . . ." 41

The Court is not persuaded. Article 222 of the RPC reads:

Officers included in the preceding provisions. — The provisions of this chapter shall apply to private individuals who, in any capacity whatever, have charge of any insular, provincial or municipal funds, revenues, or property and to any administrator or depository of funds or property attached, seized or deposited by public authority, even if such property belongs to a private individual.

"Legislative intent is determined principally from the language of a statute. Where the language of a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where a literal interpretation would be either impossible or absurd or would lead to an injustice." 42 This is particularly observed in the interpretation of penal statutes which "must be construed with such strictness as to carefully safeguard the rights of the defendant . . . ." 43 The language of the foregoing provision is clear. A private individual who has in his charge any of the public funds or property enumerated therein and commits any of the acts defined in any of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized with the same penalty meted to erring public officers. Nowhere in this provision is it expressed or implied that a private individual falling under said Article 222 is to be deemed a public officer.

After a thorough review of the case at bench, the Court thus finds Petitioner Alfredo Azarcon and his co-accused Jaime Ancla to be both private individuals erroneously charged before and convicted by Respondent Sandiganbayan which had no jurisdiction over them. The Sandiganbayan's taking cognizance of this case is of no moment since "(j)urisdiction cannot be conferred by . . . erroneous belief of the court that it had jurisdiction." 44 As aptly and correctly stated by the petitioner in his memorandum:

From the foregoing discussion, it is evident that the petitioner did not cease to be a private individual when he agreed to act as depositary of the garnished dump truck. Therefore, when the information charged him and Jaime Ancla before the Sandiganbayan for malversation of public funds or property, the prosecution was in fact charging two private individuals without any public officer being similarly charged as a co-conspirator. Consequently, the Sandiganbayan had no jurisdiction over the controversy and therefore all the proceedings taken below as well as the Decision rendered by Respondent Sandiganbayan, are null and void for lack of jurisdiction. 45

WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are hereby SET ASIDE and declared NULL and VOID for lack of jurisdiction. No costs.

SO ORDERED.

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

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 120295 June 28, 1996

Public Officers and Election Laws 36

JUAN G. FRIVALDO, petitioner, vs.COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.

G.R. No. 123755 June 28, 1996

RAUL R. LEE, petitioner, vs.COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

PANGANIBAN, J.:p

The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of Sorsogon -

(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation;

(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and that legally, he secured the most number of valid votes; or

(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"?

In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprudence on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms.

G.R. No. 123755

This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to review and annul a Resolution of the respondent Commission on Elections (Comelec), First Division, 1promulgated on December 19, 1995 2 and another Resolution of the Comelec en banc promulgated February 23, 1996 3 denying petitioner's motion for reconsideration.

The Facts

On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition 4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a citizen of the Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the Second Division of the Comelec promulgated a Resolution 5 granting the petition with the following disposition 6:

WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly, respondent's certificate of candidacy is canceled.

The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy continued and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc 7 affirmed the aforementioned Resolution of the Second Division.

The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes 8dated May 27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon:

Antonio H. Escudero, Jr. 51,060

Juan G. Frivaldo 73,440

Raul R. Lee 53,304

Isagani P. Ocampo 1,925

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition 9 praying for his proclamation as the duly-elected Governor of Sorsogon.

Public Officers and Election Laws 37

In an order 10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June 30, 1995, Lee was proclaimed governor of Sorsogon.

On July 6, 1995, Frivaldo filed with the Comelec a new petition, 11 docketed as SPC No. 95-317, praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had been granted". As such, when "the said order (dated June 21, 1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the alternative, he averred that pursuant to the two cases of Labo vs. Comelec, 12 the Vice-Governor - not Lee - should occupy said position of governor.

On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution 13 holding that Lee, "not having garnered the highest number of votes," was not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having garnered the highest number of votes,and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:

PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition.

Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he not having garnered the highest number of votes to warrant his proclamation.

Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon having garnered the highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of Governor of Sorsogon.

Conformably with Section 260 of the Omnibus Election Code (B.P. Blg. 881), the Clerk of the Commission is directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation thereof.

On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its Resolution 14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter aliadirected the parties "to maintain the status quo prevailing prior to the filing of this petition."

The Issues in G.R. No. 123755

Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following propositions" 15:

First -- The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking cognizance of and deciding said petition;

Second -- The judicially declared disqualification of respondent was a continuing condition and rendered him ineligible to run for, to be elected to and to hold the Office of Governor;

Third -- The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his ineligibility and qualify him to hold the Office of Governor; and

Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as duly elected Governor of Sorsogon.

G.R. No. 120295

This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No. 123755, as follows:

1. Resolution 16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the Philippines";

2. Resolution 17 of the Comelec en banc, promulgated on May 11, 1995; and

3. Resolution 18 of the Comelec en banc, promulgated also on May 11, 1995 suspending the proclamation of, among others, Frivaldo.

Public Officers and Election Laws 38

The Facts and the Issue

The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the above-mentioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is reproduced hereinunder:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election. (Emphasis supplied.)

the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period allowed by law" i.e., "not later than fifteen days before the election."

Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the period of fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions null and void.

By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their factual environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the province of Sorsogon.

On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously their respective memoranda.

The Consolidated Issues

From the foregoing submissions, the consolidated issues may be restated as follows:

1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when?

2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for, be elected to or hold the governorship of Sorsogon?

3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that said petition is not "a pre-proclamation case, an election protest or a quo warranto case"?

4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence?

5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"?

The First Issue: Frivaldo's Repatriation

The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters raised are secondary to this.

The Local Government Code of 1991 19 expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor, thus:

Sec. 39. Qualifications. -- (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect.

(b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day.

xxx xxx xxx

Inasmuch as Frivaldo had been declared by this Court 20 as a non-citizen, it is therefore incumbent upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R.A. 7160).

Under Philippine law, 21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R. No. 104654 22 and during the oral argument in this case that he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the endorsement of several members of the House of Representatives"

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due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects.

Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially declared a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to boot. Moreover, he now boasts of having successfully passed through the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the prime opposing counsel in the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his citizenship.

En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now discuss in seriatim.

First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executive Issuances as the same poses a serious and contentious issue of policy which the present government, in the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution", adding that in her memorandum dated March 27, 1987 to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from undertaking any and all proceedings within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended." 23

This memorandum dated March 27, 1987 24 cannot by any stretch of legal hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be express or implied. It is obvious that no express repeal was made because then President Aquino in her memorandum -- based on the copy furnished us by Lee -- did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they cannot co-exist". 26

The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law-making powers. At best, it could be treated as an executive policy addressed to the Special Committee to halt the acceptance and processing of applications for repatriation pending whatever "judgment the first Congress under the 1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first Congress -- once created -- to deal with the matter. If she had intended to repeal such law, she should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her presidential issuance in terms that clearly indicated the intention of "the present government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee, would visit unmitigated violence not only upon statutory construction but on common sense as well.

Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 . . . (and) was approved in just one day or on June 30, 1995 . . .", which "prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in Malacañang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of his application.

Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the personal interest of respondent," 27 the Solicitor General explained during the oral argument on March 19, 1996 that such allegation is simply baseless as there were many others who applied and were considered for repatriation, a list of whom was submitted by him to this Court, through a Manifestation 28 filed on April 3, 1996.

On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D.725 29 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States -- a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace -- and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people.

So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's

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repatriation should have been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion of administrative remedies.

Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 104654 30 which held that "both the Local Government Code and the Constitution require that only Philippine citizens can run and be elected to public office." Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not -- and NOT the effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court. Which question we shall now directly rule on.

Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:

* a citizen of the Philippines;

* a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected;

* a resident therein for at least one (1) year immediately preceding the day of the election;

* able to read and write Filipino or any other local language or dialect.

* In addition, "candidates for the position of governor . . . must be at least twenty-three (23) years of age on election day.

From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day).

Philippine citizenship is an indispensable requirement for holding an elective public office, 31 and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 -- the very day 32 the term of office of governor (and other elective officials) began -- he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be required at the time of election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications -- unless otherwise expressly conditioned, as in the case of age and residence -- should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term -- in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term.

But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter". And, under the law 35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter -- much less a validly registered one -- if he was not a citizen at the time of such registration.

The answer to this problem again lies in discerning the purpose of the requirement. If the law intended thecitizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected." It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require him to vote actually. Hence, registration -- not the actual voting -- is the core of this "qualification". In other words, the law's purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern -- and not anywhere else.

Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration . . . In fact, he cast his vote in his precinct on May 8, 1995." 36

So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8, 1995." 37

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It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.

There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code 38 gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible.

But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the date of the filing of his application on August 17, 1994.

It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the contrary is provided." But there are settled exceptions 40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.

According to Tolentino, 41 curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended consequences by reason of some statutory disability or failure to comply with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo, 42 on the other hand, says that curative statutes are"healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very nature, curative statutes are retroactive . . . (and) reach back to past events to correct errors or irregularities and to render valid and effective attempted acts which would be otherwise ineffective for the purpose the parties intended."

On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come within the legal meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes. 43

A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their Philippine citizenship by marriage to aliens" and who could not, under the existing law (C.A. No. 63, as amended) avail of repatriation until "after the death of their husbands or the termination of their marital status" and who could neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship . . ." because "such provision of the new Constitution does not apply to Filipino women who had married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these women -- the right to re-acquire Filipino citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also provided a new remedyand a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-acquire Philippine citizenship", because prior to the promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation.

The Solicitor General 44 argues:

By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).

In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C.A. No. 63 wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization.

Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions are considered essentially remedial and curative.

In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the intent that it should so operate clearly appears from a consideration of the act as a whole, or from the terms thereof." 45 It is obvious to the Court that the statute was meant to "reach back" to those persons, events and transactions not otherwise covered by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right equally as important as the freedom of speech, liberty of abode, the right against unreasonable searches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to make it effect the evident purpose for which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty." 46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein.

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At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said law was enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation even later, on August 17, 1994?

While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only the law itself (P.D. 725) which is to be given retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past events -- i.e., situations and transactions existing even before the law came into being -- in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest effect and expression, then there is all the more reason to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention on the part of the legislative authority; and there is no showing that damage or prejudice to anyone, or anything unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation, disturbance of any vested right or breach of some constitutional guaranty.

Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws and whatever defects there were in his nationality should now be deemed mooted by his repatriation.

Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any substantial length of time, then the former Filipinos who may be stateless, as Frivaldo -- having already renounced his American citizenship -- was, may be prejudiced for causes outside their control. This should not be. In case of doubt in the interpretation or application of laws, it is to be presumed that the law-making body intended right and justice to prevail. 47

And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation within relatively short spans of time after the same were filed. 48 The fact that such interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government is possible only where a person's repatriation has the effect of wiping out a liability of his to the government arising in connection with or as a result of his being an alien, and accruing only during the interregnum between application and approval, a situation that is not present in the instant case.

And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all questions about his possession of the nationality qualification -- whether at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become moot.

Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled. Inasmuch as he is considered as having been repatriated -- i.e., his Filipino citizenship restored -- as of August 17, 1994, his previous registration as a voter is likewise deemed validated as of said date.

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?" 49 We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship -- long before May 8, 1995. At best, Frivaldo was stateless in the interim -- when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship." 50

On this point, we quote from the assailed Resolution dated December 19, 1995: 51

By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government."

These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness orabuse. 52

The Second Issue: Is Lack of Citizenshipa Continuing Disqualification?

Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as affirmedin toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17, 1995, no restraining order having been issued by this Honorable Court. 54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final and executory way before the 1995 elections, and these "judicial pronouncements of his political status as an American citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the Philippines."

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We do not agree.

It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such elections is final and can no longer be changed. In the words of the respondent Commission (Second Division) in its assailed Resolution: 55

The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any "final judgment" of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said in its Order of June 21, 1995 (implemented on June 30, 1995), directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen "having been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of the Philippines." This declaration of the Supreme Court, however, was in connection with the 1992 elections.

Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration, 56 we held:

Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered res judicata, hence it has to be threshed out again and again, as the occasion demands.

The Third Issue: Comelec's JurisdictionOver The Petition in SPC No. 95-317

Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only "possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest or a quo warranto case". Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an election protest or a quo warranto action."

This argument is not meritorious. The Constitution 57 has given the Comelec ample power to "exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective . . . provincial . . . officials." Instead of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has invariably recognized the Commission's authority to hear and decide petitions for annulment of proclamations -- of which SPC No. 95-317 obviously is one. 58 Thus, in Mentang vs. COMELEC, 59 we ruled:

The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no longer viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidate has been proclaimed. (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive the COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)

The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same.

The Fourth Issue: Was Lee's Proclamation Valid?

Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:

First. To paraphrase this Court in Labo vs. COMELEC, 60 "the fact remains that he (Lee) was not the choice of the sovereign will," and in Aquino vs. COMELEC, 61 Lee is "a second placer, . . . just that, a second placer."

In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo 62 case, as follows:

The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected.

But such holding is qualified by the next paragraph, thus:

But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution dated May

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10, 1992 to be voted for the office of the city Payor as its resolution dated May 9, 1992 denying due course to petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of this case.

The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on election day as there was in both cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was.

Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety;" in other words, that the voters intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-governor -- and not Lee -- should be pro- claimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo:

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.

Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he obtained the highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected.

The Fifth Issue: Is Section 78 of theElection Code Mandatory?

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled because they were rendered beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus Election Code which reads as follows:

Sec. 78. Petition to deny due course or to cancel a certificate of candidacy. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided after notice and hearing, not later than fifteen days before the election. (Emphasis supplied.)

This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc 63 on February 23, 1996; which both upheld his election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for disqualifications even after the elections, thus:

Sec. 6. Effect of Disqualification Case. -- Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. (emphasis supplied)

Refutation ofMr. Justice Davide's Dissent

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum dated March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the said issuance is not a statute that can amend or abrogate an existing law.The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case; 64 viz., "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation". He also contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such previous rulings.

Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of a false material representation therein as required by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they were issued "not later than fifteen days before the election" as prescribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R.A. 6646 authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory", we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295". One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must be filed within the 25-day period prescribed therein. The present case however deals with the period during which the Comelec

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may decide such petition. And we hold that it may be decided even after thefifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict.

Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has changed his political status -- not in 1988 or 1992, but only in the 1995 elections.

Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that "informal renunciation or abandonment is not a ground to lose American citizenship". Since our courts are charged only with the duty of determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not Americans. It is basic in international law that a State determines ONLY those who are its own citizens -- not who are the citizens of other countries. 65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding and final.

The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly known". First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if there is, such knowledge can be true post facto only of the last two previous elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality before, during and after the 1995 elections. How then can there be such "public" knowledge?

Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of electivelocal officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates". If the qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification should be possessed at election day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f) far other qualifications of candidates for governor, mayor, etc.

Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others, that the law specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the provision states. We hold however that the provision should be understood thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application therefor.

In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the Local Authority Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity, were already taken up rather extensively earlier in this Decision.

Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree -- we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and applied in this case so it can be followed, so it can rule!

At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit, the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.

E P I L O G U E

In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of the remedial or curative nature of the law granting him a new right to resume his political status and the legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor, during the pendency of which he was stateless, he having given up his U.S. nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been validated as of said date as well. The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualification to run for and hold public office. And once again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for annulment of proclamations.

This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the manifest will of our people, 66 for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held:

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. . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections (citations omitted). 67

The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic 68 to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this undertaking, Lee has miserably failed.

In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have refused to grant retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time he registered as a voter before the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any elective local position." But the real essence of justice does not emanate from quibblings over patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the dictatorship. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning desire to re-embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and love of country as well as nobility of purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice.

WHEREFORE, in consideration of the foregoing:

(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission are AFFIRMED.

(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit.

No costs.

SO ORDERED.

Padilla, Regalado, Romero, Bellosillo, Francisco, Hermosisima, Jr. and Torres, Jr., JJ., concur.

Melo, Vitug and Kapunan, JJ., concurs in the result.

Narvasa, C.J. and Mendoza, J., took no part.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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

Estelito P. Mendoza for petitioner.

Rillera and Quintana for private respondent.

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CRUZ, J.:

The petitioner asks this Court to restrain the Commission on Elections from looking into the question of his citizenship as a qualification for his office as Mayor of Baguio City. The allegation that he is a foreigner, he says, is not the issue. The issue is whether or not the public respondent has jurisdiction to conduct any inquiry into this matter, considering that the petition for quo warranto against him was not filed on time.

It is noteworthy that this argument is based on the alleged tardiness not of the petition itself but of the payment of the filing fee, which the petitioner contends was an indispensable requirement. The fee is, curiously enough, all of P300.00 only. This brings to mind the popular verse that for want of a horse the kingdom was lost. Still, if it is shown that the petition was indeed filed beyond the reglementary period, there is no question that this petition must be granted and the challenge abated.

The petitioner's position is simple. He was proclaimed mayor-elect of Baguio City, on January 20, 1988. The petition for quo warranto was filed by the private respondent on January 26, 1988, but no filing fee was paid on that date. This fee was finally paid on February 10, 1988, or twenty-one days after his proclamation. As the petition by itself alone was ineffectual without the filing fee, it should be deemed filed only when the fee was paid. This was done beyond the reglementary period provided for under Section 253 of the Omnibus Election Code reading as follows:

SEC. 253. Petition for quo warranto. — Any voter contesting the election of a Member of the Batasang Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the proclamation of the result of the election.

The petitioner adds that the payment of the filing fee is required under Rule 36, Section 5, of the Procedural Rules of the COMELEC providing that —

Sec. 5. No petition for quo warranto shall be given due course without the payment of a filing fee in the amount of Three Hundred Pesos (P300.00) and the legal research fee as required by law.

and stresses that there is abundant jurisprudence holding that the payment of the filing fee is essential to the timeliness of the filling of the petition itself. He cites many rulings of the Court to this effect, specifically Manchester v. Court of Appeals. 1

For his part, the private respondent denies that the filing fee was paid out of time. In fact he says, it was fliedahead of time. His point is that when he filed his "Petition for Quo Warranto with Prayer for Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26, 1988, the COMELEC treated it as a pre-proclamation controversy and docketed it as SPC Case No. 88-288. No docket fee was collected although it was offered. It was only on February 8, 1988, that the COMELEC decided to treat his petition as solely for quo warranto and re-docketed it as EPC Case No. 88-19, serving him notice on February 10, 1988. He immediately paid the filing fee on that date.

The private respondent argues further that during the period when the COMELEC regarded his petition as a pre-proclamation controversy, the time for filing an election protest or quo warranto proceeding was deemed suspended under Section 248 of the Omnibus Election Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC Rules of Procedure cited by the petitioner, became effective only on November 15, 1988, seven days after publication of the said Rules in the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These rules could not retroact to January 26,1988, when he filed his petition with the COMELEC.

In his Reply, the petitioner argues that even if the Omnibus Election Code did not require it, the payment of filing fees was still necessary under Res. No. 1996 and, before that, Res. No. 1450 of the respondent COMELEC, promulgated on January 12, 1988, and February 26, 1980, respectively. To this, the private respondent counters that the latter resolution was intended for the local elections held on January 30, 1980, and did not apply to the 1988 local elections, which were supposed to be governed by the first-mentioned resolution. However, Res. No. 1996 took effect only on March 3, 1988, following the lapse of seven days after its publication as required by RA No. 6646, otherwise known as the Electoral Reform Law of 1987, which became effective on January 5, 1988. Its Section 30 provides in part:

Sec. 30. Effectivity of Regulations and Orders of the Commission. — The rules and regulations promulgated by the Commission shall take effect on the seventh day after their publication in the Official Gazette or in at least (2) daily newspapers of general circulation in the Philippines.

The Court has considered the arguments of the parties and holds that the petition for quo warranto was filed on time. We agree with the respondents that the fee was paid during the ten-day period as extended by the pendency of the petition when it was treated by the COMELEC as a pre-proclamation proceeding which did not require the payment of a filing fee. At that, we reach this conclusion only on the assumption that the requirement for the payment of the fees in quo warranto proceedings was already effective. There is no record that Res. No. 1450 was even published; and as for Res. No. 1996, this took effect only on March 3, 1988, seven days after its publication in the February 25, 1988 issues of the Manila Chronicle and the Philippine Daily Inquirer, or after the petition was filed.

The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the resolutions became effective "immediately upon approval" simply because it was so provided therein. We held in that case that publication was still necessary under the due process clause despite such effectivity clause.

In any event, what is important is that the filing fee was paid, and whatever delay there may have been is not imputable to the private respondent's fault or neglect. It is true that in the Manchester Case, we required the timely payment of the filing fee as a precondition for

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the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however this Court, taking into account the special circumstances of that case, declared:

This Court reiterates the rule that the trial court acquires jurisdiction over a case only upon the payment of the prescribed filing fee. However, the court may allow the payment of the said fee within a reasonable time. In the event of non-compliance therewith, the case shall be dismissed.

The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988, thus:

Sec. 18. Non-payment of prescribed fees. — If the fees above prescribed are not paid, theCommission may refuse to take action thereon until they are paid and may dismiss the action or the proceeding. (Emphasis supplied.)

The Court notes that while arguing the technical point that the petition for quo warranto should be dismissed for failure to pay the filing fee on time, the petitioner would at the same time minimize his alleged lack of citizenship as "a futile technicality," It is regrettable, to say the least, that the requirement of citizenship as a qualification for public office can be so demeaned. What is worse is that it is regarded as an even less important consideration than the reglementary period the petitioner insists upon.

This matter should normally end here as the sole issue originally raised by the petitioner is the timeliness of thequo warranto proceedings against him. However, as his citizenship is the subject of that proceeding, and considering the necessity for an early resolution of that more important question clearly and urgently affecting the public interest, we shall directly address it now in this same action.

The Court has similarly acted in a notable number of cases, thus:

From the foregoing brief statement of the nature of the instant case, it would appear that our sole function in this proceeding should be to resolve the single issue of whether or not the Court of Appeals erred in ruling that the motion for new trial of the GSIS in question should indeed be deemed pro forma. But going over the extended pleadings of both parties, the Court is immediately impressed that substantial justice may not be timely achieved, if we should decide this case upon such a technical ground alone. We have carefully read all the allegations and arguments of the parties, very ably and comprehensively expounded by evidently knowledgeable and unusually competent counsel, and we feel we can better serve the interests of justice by broadening the scope of our inquiry, for as the record before us stands, we see that there is enough basis for us to end the basic controversy between the parties here and now, dispensing, however, with procedural steps which would not anyway affect substantially the merits of their respective claims. 6

x x x

While it is the fault of the petitioner for appealing to the wrong court and thereby allowing the period for appeal to lapse, the more correct procedure was for the respondent court to forward the case to the proper court which was the Court of Appeals for appropriate action. Considering, however, the length of time that this case has been pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112 SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v. Court of Appeals, (135 SCRA 37) which states:

... it is a cherished rule of procedure for this Court to always strive to settle the entire controversy in a single proceeding leaving no root or branch to bear the seeds of future litigation. No useful purpose will be served if this case is remanded to the trial court only to have its decision raised again to the Intermediate Appellate Court and from there to this Court. (p. 43)

Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals, et al. (G.R. No. 50141, January 29, 1988), we stated that:

... But all those relevant facts are now before this Court. And those facts dictate the rendition of a verdict in the petitioner's favor. There is therefore no point in referring the case back to the Court of Appeals. The facts and the legal propositions involved will not change, nor should the ultimate judgment. Considerable time has already elapsed and, to serve the ends of justice, it is time that the controversy is finally laid to rest. (See Sotto v. Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628; Valencia v. Mabilangan, 105 Phil. 162).lâwphî1.ñèt Sound practice seeks to accommodate the theory which avoids waste of time, effort and expense, both to the parties and the government, not to speak of delay in the disposal of the case (cf. Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic of our judicial set-up is that where the dictates of justice so demand ... the Supreme Court should act, and act with finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case, the dictates of justice do demand that this Court act, and act with finality. 7

x x x

Remand of the case to the lower court for further reception of evidence is not necessary where the court is in a position to resolve the dispute based on the records before it. On many occasions, the Court, in the public interest and the expeditious administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such as where the ends of justice would not be subserved by the remand of the case or when

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public interest demands an early disposition of the case or where the trial court had already received all the evidence of the parties. 8

This course of action becomes all the more justified in the present case where, to repeat for stress, it is claimed that a foreigner is holding a public office.

We also note in his Reply, the petitioner says:

In adopting private respondent's comment, respondent COMELEC implicitly adopted as "its own" private respondent's repeated assertion that petitioner is no longer a Filipino citizen. In so doing, has not respondent COMELEC effectively disqualified itself, by reason of prejudgment, from resolving the petition for quo warranto filed by private respondent still pending before it? 9

This is still another reason why the Court has seen fit to rule directly on the merits of this case.

Going over the record, we find that there are two administrative decisions on the question of the petitioner's citizenship. The first was rendered by the Commission on Elections on May 12, 1982, and found the petitioner to be a citizen of the Philippines. 10 The second was rendered by the Commission on Immigration and Deportation on September 13, 1988, and held that the petitioner was not a citizen of the Philippines. 11

The first decision was penned by then COMELEC Chigas, Vicente Santiago, Jr., with Commissioners Pabalate Savellano and Opinion concurring in full and Commissioner Bacungan concurring in the dismissal of the petition "without prejudice to the issue of the respondent's citizenship being raised anew in a proper case." Commissioner Sagadraca reserved his vote, while Commissioner Felipe was for deferring decision until representations shall have been made with the Australian Embassy for official verification of the petitioner's alleged naturalization as an Australian.

The second decision was unanimously rendered by Chairman Miriam Defensor-Santiago and Commissioners Alano and Geraldez of the Commission on Immigration and Deportation. It is important to observe that in the proceeding before the COMELEC, there was no direct proof that the herein petitioner had been formally naturalized as a citizen of Australia. This conjecture, which was eventually rejected, was merely inferred from the fact that he had married an Australian citizen, obtained an Australian passport, and registered as an alien with the CID upon his return to this country in 1980.

On the other hand, the decision of the CID took into account the official statement of the Australian Government dated August 12, 1984, through its Consul in the Philippines, that the petitioner was still an Australian citizen as of that date by reason of his naturalization in 1976. That statement 12 is reproduced in full as follows:

I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by virtue of a certificate of appointment signed and sealed by the Australian Minister of State for Foreign Affairs on 19 October 1983, and recognized as such by Letter of Patent signed and sealed by the Philippines Acting Minister of Foreign Affairs on 23 November 1983, do hereby provide the following statement in response to the subpoena Testificandum dated 9 April 1984 in regard to the Petition for disqualification against RAMON LABO, JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the statement is true and correct.

STATEMENT

A) RAMON LABO, JR. Y LOZANO, date of birth 23 December 1934, was married in the Philippines to an Australian citizen. As the spouse of an Australian citizen, he was not required to meet normal requirements for the grant of citizenship and was granted Australian citizenship by Sydney on 28 July 1976.

B) Any person over the age of 16 years who is granted Australian citizenship must take an oath of allegiance or make an affirmation of allegiance. The wording of the oath of affirmation is: "I ..., renouncing all other allegiance ..." etc. This need not necessarily have any effect on his former nationality as this would depend on the citizenship laws of his former country.

C) The marriage was declared void in the Australian Federal Court in Sydney on 27 June 1980 on the ground that the marriage had been bigamous.

D) According to our records LABO is still an Australian citizen.

E) Should he return to Australia, LABO may face court action in respect of Section 50 of Australian Citizenship Act 1948 which relates to the giving of false or misleading information of a material nature in respect of an application for Australian citizenship. If such a prosecution was successful, he could be deprived of Australian citizenship under Section 21 of the Act.

F) There are two further ways in which LABO could divest himself of Australian citizenship:

(i) He could make a declaration of Renunciation of Australian citizenship under Section 18 of the Australian Citizenship Act, or

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(ii) If he acquired another nationality, (for example, Filipino) by a formal and voluntary act other than marriage, then he would automatically lose as Australian citizenship under Section 17 of the Act.

IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF APRIL 1984. DONE AT MANILA IN THE PHILIPPINES.

(Signed) GRAHAM C. WEST Consul

This was affirmed later by the letter of February 1, 1988, addressed to the private respondent by the Department of Foreign Affairs reading as follows: 13

Sir:

With reference to your letter dated 1 February 1988, I wish to inform you that inquiry made with the Australian Government through the Embassy of the Philippines in Canberra has elicited the following information:

1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on 28 July 1976.

2) That prior to 17 July 1986, a candidate for Australian citizenship had to either swear an oath of allegiance or make an affirmation of allegiance which carries a renunciation of "all other allegiance.

Very truly yours, For the Secretary of Foreign Affairs: (SGD) RODOLFO SEVERINO, JR. Assistant Secretary

The decision also noted the oath of allegiance taken by every naturalized Australian reading as follows:

OATH OF ALLEGIANCE

I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the laws of Australia and fulfill my duties as an Australian citizen. 14

and the Affirmation of Allegiance, which declares:

AFFIRMATION OF ALLEGIANCE

I, A.B., renouncing all other allegiance, solemnly and sincerely promise and declare that I will be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs and successors according to law, and that I will faithfully observe the Laws of Australia and fulfill my duties as an Australian citizen. 15

The petitioner does not question the authenticity of the above evidence. Neither does he deny that he obtained Australian Passport No. 754705, which he used in coming back to the Philippines in 1980, when he declared before the immigration authorities that he was an alien and registered as such under Alien Certificate of Registration No. B-323985. 16 He later asked for the change of his status from immigrant to a returning former Philippine citizen and was granted Immigrant Certificate of Residence No. 223809. 17 He also categorically declared that he was a citizen of Australia in a number of sworn statements voluntarily made by him and. even sought to avoid the jurisdiction of the barangay court on the ground that he was a foreigner. 18

The decision of the COMELEC in 1982 quaintly dismisses all these acts as "mistakes" that did not divest the petitioner of his citizenship, although, as earlier noted, not all the members joined in this finding. We reject this ruling as totally baseless. The petitioner is not an unlettered person who was not aware of the consequences of his acts, let alone the fact that he was assisted by counsel when he performed these acts.

The private respondent questions the motives of the COMELEC at that time and stresses Labo's political affiliation with the party in power then, but we need not go into that now.

There is also the claim that the decision can no longer be reversed because of the doctrine of res judicata, but this too must be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. 19 Moreover, it does not appear that it was properly and seasonably pleaded, in a motion to dismiss or in the answer, having been invoked only when the petitioner filed his reply 20 to the private respondent's comment. Besides, one of the requisites of res judicata, to wit, identity of parties, is not present in this case.

The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that he automatically ceased to be a Filipino because of that marriage. He became a citizen of Australia because he was naturalized as such through a formal and positive process, simplified in his case because he was married to an Australian citizen. As a condition for such naturalization, he formally took the Oath of Allegiance and/or made the Affirmation of Allegiance, both quoted above. Renouncing all other allegiance, he swore "to be faithful and bear true allegiance to Her Majesty Elizabeth the Second, Queen of Australia ..." and to fulfill his duties "as an Australian citizen."

The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did not divest him of his Philippine citizenship. Such a specious argument cannot stand against the clear provisions of CA No. 63, which enumerates the modes by which

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Philippine citizenship may be lost. Among these are: (1) naturalization in a foreign country; (2) express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, all of which are applicable to the petitioner. It is also worth mentioning in this connection that under Article IV, Section 5, of the present Constitution, "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law."

Even if it be assumed that, as the petitioner asserts, his naturalization in Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did not automatically restore his Philippine citizenship. His divestiture of Australian citizenship does not concern us here. That is a matter between him and his adopted country. What we must consider is the fact that he voluntarily and freely rejected Philippine citizenship and willingly and knowingly embraced the citizenship of a foreign country. The possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has been automatically reinstated as a citizen of the Philippines.

Under CA No. 63 as amended by PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation. It does not appear in the record, nor does the petitioner claim, that he has reacquired Philippine citizenship by any of these methods. He does not point to any judicial decree of naturalization as to any statute directly conferring Philippine citizenship upon him. Neither has he shown that he has complied with PD No. 725, providing that:

... (2) natural-born Filipinos who have lost their Philippine citizenship may reacquire Philippine citizenship through repatriation by applying with the Special Committee on Naturalization created by Letter of Instruction No. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines, after which they shall be deemed to have reacquired Philippine citizenship. The Commission on Immigration and Deportation shall thereupon cancel their certificate of registration. (Emphasis supplied.)

That is why the Commission on Immigration and Deportation rejected his application for the cancellation of his alien certificate of registration. And that is also the reason we must deny his present claim for recognition as a citizen of the Philippines.

The petitioner is not now, nor was he on the day of the local elections on January 18, 1988, a citizen of the Philippines. In fact, he was not even a qualified voter under the Constitution itself because of his alienage. 21 He was therefore ineligible as a candidate for mayor of Baguio City, under Section 42 of the Local Government Code providing in material part as follows:

Sec. 42. Qualifications. — An elective local official must be a citizen of the Philippines, at least twenty-three years of age on election day, a qualified voter registered as such in the barangay, municipality, city or province where he proposes to be elected, a resident therein for at least one year at the time of the filing of his certificate of candidacy, and able to read and write English, Filipino, or any other local language or dialect.

The petitioner argues that his alleged lack of citizenship is a "futile technicality" that should not frustrate the will of the electorate of Baguio City, who elected him by a "resonant and thunderous majority." To be accurate, it was not as loud as all that, for his lead over the second-placer was only about 2,100 votes. In any event, the people of that locality could not have, even unanimously, changed the requirements of the Local Government Code and the Constitution. 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.

The probability that many of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the results of the election cannot nullify the qualifications for the office now held by him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemed forfeited. In the case at bar, the citizenship and voting requirements were not subsequently lost but were not possessed at all in the first place on the day of the election. The petitioner was disqualified from running as mayor and, although elected, is not now qualified to serve as such.

Finally, there is the question of whether or not the private respondent, who filed the quo warranto petition, can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second highest number of votes in the election, he was obviously not the choice of the people of Baguio city.

The latest ruling of the Court on this issue is Santos v. Commission on Elections 22 decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all disregarded as stray. In effect, the second placer won by default. That decision was supported by eight members of the Court then 23 with three dissenting 24 and another two reserving their vote. 25 One was on official leave. 26

Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier case ofGeronimo v. Ramos, 27 Which represents the more logical and democratic rule. That case, which reiterated the doctrine first announced in 1912 in Topacio vs. Paredes 28 was supported by ten members of the Court 29 without any dissent, although one reserved his vote, 30 another took no part 31 and two others were on leave. 32 There the Court held:

... 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

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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. (20 Corpus Juris 2nd, S 243, p. 676.)

The fact that the candidate who obtained the highest number of votes is later declared to be disqualified or not eligible for the office to which he was elected does not necessarily entitle the candidate who obtained the second highest number of votes to be declared the winner of the elective office. The votes cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or maintain him there. However, in the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive, qualified, or eligible, they should not be treated as stray, void or meaningless.

It remains to stress that the citizen of the Philippines must take pride in his status as such and cherish this priceless gift that, out of more than a hundred other nationalities, God has seen fit to grant him. Having been so endowed, he must not lightly yield this precious advantage, rejecting it for another land that may offer him material and other attractions that he may not find in his own country. To be sure, he has the right to renounce the Philippines if he sees fit and transfer his allegiance to a state with more allurements for him. 33 But having done so, he cannot expect to be welcomed back with open arms once his taste for his adopted country turns sour or he is himself disowned by it as an undesirable alien.

Philippine citizenship is not a cheap commodity that can be easily recovered after its renunciation. It may be restored only after the returning renegade makes a formal act of re-dedication to the country he has abjured and he solemnly affirms once again his total and exclusive loyalty to the Republic of the Philippines. This may not be accomplished by election to public office.

WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to serve as Mayor of Baguio City. He is ordered to VACATE his office and surrender the same to the Vice-Mayor of Baguio City, once this decision becomes final and executory. The temporary restraining order dated January 31, 1989, is LIFTED.

Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griñ;o-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTTIERREZ, JR., J.,concurring:

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the Court's decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can countenance a citizen of a foreign country or one who has renounced Filipino citizenship sitting as the mayor of one of the most important cities in the Philippines.

What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction of the COMELEC and remanding the case for further proceedings and the rendition of a decision. Under Section 7, Article IXA of the Constitution, a decision, order, or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty day from receipt of a copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as yet, be elevated to us for review. I, therefore, reiterate my statement inFrivaldo that my concurrence is limited only to cases involving citizenship and disloyalty but not to any of the many other grounds for disqualification cited in my concurring opinion.

Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by the singular achievements in the beautification of Baguio City, in the peace and order situation, and in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo assumed the mayorship. However, I see no other way this case can be resolved except by adopting a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I join the rest of the Court.

Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griñ;o-Aquino Medialdea and Regalado, JJ., concur.

Separate Opinions

GUTTIERREZ, JR., J.,concurring:

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspire of what would otherwise be insuperable procedural obstacles, I am constrained to concur in the Court's decision so forcefully and felicitously written by Mr. Justice Isagani A. Cruz. I do so because I cannot see how the Court can countenance a citizen of a foreign country or one who has renounced Filipino citizenship sitting as the mayor of one of the most important cities in the Philippines.

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What was raised to the Court was only the issue of the COMELEC's jurisdiction to inquire into the citizenship of the petitioner. Ordinarily, we would have limited ourselves to sustaining the jurisdiction of the COMELEC and remanding the case for further proceedings and the rendition of a decision. Under Section 7, Article IXA of the Constitution, a decision, order, or ruling of the COMELEC may be brought to the Supreme Court on certiorari by the aggrieved party within thirty day from receipt of a copy thereof. No decision on the petitioner's citizenship has been rendered and no decision can, as yet, be elevated to us for review. I, therefore, reiterate my statement inFrivaldo that my concurrence is limited only to cases involving citizenship and disloyalty but not to any of the many other grounds for disqualification cited in my concurring opinion.

Our decision to disqualify the petitioner is particularly distressing to me because I am impressed by the singular achievements in the beautification of Baguio City, in the peace and order situation, and in the resurgence of civic pride so visible to anyone who has gone up to Baguio since Mr. Labo assumed the mayorship. However, I see no other way this case can be resolved except by adopting a pragmatic approach. It is beyond dispute that a non-citizen cannot be the mayor of Baguio City. I join the rest of the Court.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 130872 March 25, 1999

FRANCISCO M. LECAROZ and LENLIE LECAROZ, petitioners, vs.SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

BELLOSILLO, J.:

FRANCISCO M. LECAROZ and LENLIE LECAROZ, father and son, were convicted by the Sandiganbayan of thirteen (13) counts of estafa through falsification of public documents. 1 They now seek a review of their conviction as they insist on their innocence.

Petitioner Francisco M. Lecaroz was the Municipal Mayor of Santa Cruz, Marinduque, while his son, his co-petitioner Lenlie Lecaroz, was the outgoing chairman of the Kabataang Barangay (KB) of Barangay Bagong Silang, Municipality of Santa Cruz, and concurrently a member of its Sangguniang Bayan (SB) representing the Federation of Kabataang Barangays.

In the 1985 election for the Kabataang Barangay Jowil Red 2 won as KB Chairman of Barangay Matalaba, Santa Cruz. Parenthetically, Lenlie Lecaroz, did not run as candidate in this electoral exercise as he was no longer qualified for the position after having already passed the age limit fixed by law.

Sometime in November 1985 Red was appointed by then President Ferdinand Marcos as member of the Sangguniang Bayan of Santa Cruz representing the KBs of the municipality. Imee Marcos-Manotoc, then the National Chairperson of the organization, sent a telegram to Red confirming his appointment and advising him further that copies of his appointment papers would be sent to him in due time through the KB Regional Office. 3Red received the telegram on 2 January 1986 and showed it immediately to Mayor Francisco M. Lecaroz.

On 7 January 1986, armed with the telegram and intent on assuming the position of sectoral representative of the KBs to the SB, Red attended the meeting of the Sanggunian upon the invitation of one of its members, Kagawad Rogato Lumawig. In that meeting, Mayor Francisco M. Lecaroz informed Red that he could not yet sit as member of the municipal council until his appointment had been cleared by the Governor of Marinduque. Nonetheless, the telegram was included in the agenda as one of the subjects discussed in the meeting.

Red finally received his appointment papers sometime in January 1986. 4 But it was only on 23 April 1986, when then President Corazon C. Aquino was already in power, 5 that he forwarded these documents to Mayor Lecaroz. This notwithstanding, Red was still not allowed by the mayor to sit as sectoral representative in the Sanggunian.

Meanwhile, Mayor Lecaroz prepared and approved on different dates the payment to Lenlie Lecaroz of twenty-six (26) sets of payrolls for the twenty-six (26) quincenas covering the period 16 January 1986 to 30 January 1987. Lenlie Lecaroz signed the payroll for 1-15 January 1986 and then authorized someone else to sign all the other payrolls for the succeeding quincenas and claim the corresponding salaries in his behalf.

On 25 October 1989, or three (3) years and nine (9) months from the date he received his appointment papers from President Marcos, Red was finally able to secure from the Aquino Administration a confirmation of his appointment as KB Sectoral Representative to the Sanggunian Bayan of Santa Cruz.

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Subsequently, Red filed with the Office of the Ombudsman several criminal complaints against Mayor Francisco Lecaroz and Lenlie Lecaroz arising from the refusal of the two officials to let him assume the position of KB sectoral representative. After preliminary investigation, the Ombudsman filed with the Sandiganbayan thirteen (13) Informations for estafa through falsification of public documents against petitioners, and one (1) Information for violation of Sec. 3, par. (e), of RA No. 3019, the Anti-Graft and Corrupt Practices Act, against Mayor Lecaroz alone.

On 7 October 1994 the Sandiganbayan rendered a decision finding the two (2) accused guilty on all counts of estafa through falsification of public documents and sentenced each of them to —

a) imprisonment for an indeterminate period ranging from a minimum of FIVE (5) YEARS, ELEVEN (11) MONTHS AND ONE (1) DAY of prision correccional to a maximum of TEN (10) YEARS AND ONE (1) DAY of prison mayor FOR EACH OF THE ABOVE CASES;

b) a fine in the amount of FIVE THOUSAND PESOS (P5,000) FOR EACH OF THE ABOVE CASES or a total of SIXTY-FIVE THOUSAND PESOS (P65,000); and

c) perpetual special disqualification from public office in accordance with Art. 214 of the Revised Penal Code.

. . . (and) to pay jointly and severally the amount of TWENTY-THREE THOUSAND SIX HUNDRED SEVENTY-FIVE PESOS (P23,675), the amount unlawfully obtained, to the Municipality of Sta. Cruz, Marinduque in restitution.

The Sandiganbayan ruled that since Red was elected president of the KB and took his oath of office sometime in 1985 before then Assemblywoman Carmencita O. Reyes his assumption of the KB presidency upon the expiration of the term of accused Lenlie Lecaroz was valid. Conversely, the accused Lenlie Lecaroz ceased to be a member of the KB on the last Sunday of November 1985 and, as such, was no longer the legitimate representative of the youth sector in the municipal council of Sta. Cruz, Marinduque.

In convicting both accused on the falsification charges, the Sandiganbayan elucidated —

. . . . when, therefore, accused MAYOR FRANCISCO LECAROZ entered the name of his son, the accused LENLIE LECAROZ, in the payroll of the municipality of Sta. Cruz for the payroll period starting January 15, 1986, reinstating accused LENLIE LECAROZ to his position in the Sangguniang Bayan, he was deliberately stating a falsity when he certified that LENLIE LECAROZ was a member of the Sangguniang Bayan. The fact is that even accused LENLIE LECAROZ himself no longer attended the sessions of the Sangguniang Bayan of Sta. Cruz, and starting with the payroll for January 16 to 31, 1986, did not personally pick up his salaries anymore.

The accused MAYOR's acts would fall under Art. 171, par. 4, of The Revised Penal Code which reads:

Art. 171. Falsification by public officer, employee or notary or ecclesiastical minister. — The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary public who, taking advantage of his official position, shall falsify a document by committing any of the following acts: . . . . 4. Making untruthful statements in a narration of facts.

xxx xxx xxx

Clearly, falsification of public documents has been committed by accused MAYOR LECAROZ.

Likewise from these acts of falsification, his son, accused LENLIE LECAROZ, was able to draw salaries from the municipality to which he was not entitled for services he had admittedly not rendered. This constitutes Estafa . . . . the deceit being the falsification made, and the prejudice being that caused to the municipality of Sta. Cruz, Marinduque for having paid salaries to LENLIE LECAROZ who was not entitled thereto.

Conspiracy was alleged in the Informations herein, and the Court found the allegation sufficiently substantiated by the evidence presented.

There is no justifiable reason why accused MAYOR LECAROZ should have reinstated his son LENLIE in the municipal payrolls from January 16, 1986 to January 31, 1987, yet he did so. He could not have had any other purpose than to enable his son LENLIE to draw salaries thereby. This conclusion inescapable considering that the very purpose of a payroll is precisely that — to authorize the payment of salaries. And LENLIE LECAROZ did his part by actually drawing the salaries during the periods covered, albeit through another person whom he had authorized.

By the facts proven, there was conspiricy in the commission of Estafa between father and son.

However, with respect to the charge of violating Sec. 3, par. (e), of RA No. 3019, the Sandiganbayan acquitted Mayor Francisco Lecaroz. It found that Red was neither authorized to sit as member of the SB because he was not properly appointed thereto nor had he shown to the mayor sufficient basis for his alleged right to a seat in the municipal council. On this basis, the court a quo concluded that Mayor Lecaroz was legally justified in not allowing Red to assume the position of Kagawad.

On 1 October 1994 the Sandiganbayan denied the motion for reconsideration of its decision filed by the accused. This prompted herein petitioners to elevate their cause to us charging that the Sandiganbayan erred:

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First, in holding that Red had validly and effectively assumed the office of KB Federation President by virtue of his oath taken before then Assembly woman Carmencita Reyes on 27 September 1985, and in concluding that the tenure of accused Lenlie Lecaroz as president of the KB and his coterminous term of office as KB representative to the SB had accordingly expired;

Second, assuming arguendo that the term of office of the accused Lenlie Lecaroz as youth representative to the SB had expired, in holding that accused Lenlie Lecaroz could no longer occupy the office, even in a holdover capacity, despite the vacancy therein;

Third, granting arguendo that the tenure of the accused Lenlie Lecaroz as federation president had expired, in holding that by reason thereof accused Lenlie Lecaroz became legally disqualified from continuing in office as KB Sectoral Representative to the SB even in a holdover capacity;

Fourth, in not holding that under Sec. 2 of the Freedom Constitution and pursuant to the provisions of the pertinent Ministry of Interior and Local Governments (MILG) interpretative circulars, accused Lenlie Lecaroz was legally entitled and even mandated to continue in office in a holdover capacity;

Fifth, in holding that the accused had committed the crime of falsification within the contemplation of Art. 171 of The Revised Penal Code, and in not holding that the crime of estafa of which they, had been convicted required criminal intent and malice as essential elements;

Sixth, assuming arguendo that the accused Lenlie Lecaroz was not legally entitled to hold over, still the trial court erred in not holding — considering the difficult legal questions involved — that the accused acted in good faith and committed merely an error of judgment, without malice and criminal intent; and,

Seventh, in convicting the accused for crimes committed in a manner different from that alleged in the Information under which the accused were arraigned and tried.

The petition is meritorious. The basic propositions upon which the Sandiganbayan premised its conviction of the accused are: (a) although Jowil Red was duly elected KB Chairman he could not validly assume a seat in the Sanggunian as KB sectoral representative for failure to show a valid appointment; and, (b) Lenlie Lecaroz who was the incumbent KB representative could not hold over after his term expired because pertinent laws do not provide for holdover.

To resolve these issues, it is necessary to refer to the laws on the terms of office of KB youth sectoral representatives to the SB and of the KB Federation Presidents. Section 7 of BP Blg. 51 and Sec. 1 of the KB Constitution respectively provide —

Sec. 7. Term 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.

In the case of the members of the sanggunian representing the association of barangay councils and the president of the federation of kabataan barangay, their terms of office shall be coterminous with their tenure as president fo their respective association and federation.

xxx xxx xxx

Sec 1. All incumbent officers of the Kabataang Barangay shall continue to hold office until the last Sunday of November 1985 or such time that the newly elected officers shall have qualified and assumed office in accordance with this Constitution.

The theory of petitioners is that Red failed to qualify as KB sectoral representative to the SB since he did not present an authenticated copy of his appointment papers; neither did he take a valid oath of office. Resultantly, this enabled petitioner Lenlie Lecaroz to continue as member of the SB although in a holdover capacity since his term had already expired. The Sandiganbayan however rejected this postulate declaring that the holdover provision under Sec. 1 quoted above pertains only to positions in the KB, clearly implying that since no similar provision is found in Sec. 7 of B.P. Blg. 51, there can be no holdover with respect to positions in the SB.

We disagree with the Sandiganbayan. The concept of holdover when applied to a public officer implies that the office has a fixed term and the incumbent is holding onto the succeeding term. 6 It is usually provided by law that officers elected or appointed for a fixed term shall remain in office not only for that term but until their successors have been elected and qualified. Where this provision is found, the office does not become vacant upon the expiration of the term if there is no successor elected and qualified to assume it, but the present incumbent will carry over until his successor is elected and qualified, even though it be beyond the term fixed by law. 7

In the instant case, although BP Blg. 51 does not say that a Sanggunian member can continue to occupy his post after the expiration of his term in case his successor fails to qualify, it does, not also say that he is proscribed from holding over. Absent an express or implied constitutional or statutory provision to the contrary, an officer is entitled to stay in office until his successor is appointed or chosen and has qualified. 8 The legislative intent of not allowing holdover must be clearly expressed or at least implied in the legislative enactment, 9 otherwise it is reasonable to assume that the law-making body favors the same.

Indeed, the law abhors a vacuum in public offices, 10 and courts generally indulge in the strong presumption against a legislative intent to create, by statute, a condition which may result in an executive or administrative office becoming, for any period of time, wholly vacant or unoccupied by one lawfully authorized to exercise its functions. 11 This is founded on obvious considerations of public policy, for the principle of holdover is specifically intended to prevent public convenience from suffering because of a vacancy 12 and to avoid a hiatus in the performance of government functions. 13

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The Sandiganbayan maintained that by taking his oath of office before Assembly woman Reyes in 1985 Red validly assumed the presidency of the KB upon the expiration of the term of Lenlie Lecaroz. It should be noted however that under the provisions of the Administrative Code then in force, specifically Sec. 21, Art. VI thereof, members of the then Batasang Pambansa were not authorized to administer oaths. It was only after the approval of RA No. 6733 14 on 25 July 1989 and its subsequent publication in a newspaper of general circulation that, members of both Houses of Congress were vested for the first time with the general authority to administer oaths. Clearly, under this circumstance, the oath of office taken by Jowil Red before a member of the Batasang Pambansa who had no authority to administer oaths, was invalid and amounted to no oath at all.

To be sure, an oath of office is a qualifying requirement for a public office; a prerequisite to the full investiture with the office. 15 Only when the public officer has satisfied the prerequisite of oath that his right to enter into the position becomes plenary and complete. Until then, he has none at all. And for as long as he has not qualified, the holdover officer is the rightful occupant. It is thus clear in the present case that since Red never qualified for the post, petitioner Lenlie Lecaroz remained KB representative to the Sanggunian, albeit in a carry over capacity, and was in every aspect a de jure officer, 16 or at least a de facto officer 17 entitled to receive the salaries and all the emoluments appertaining to the position. As such, he could not be considered an intruder and liable for encroachment of public office. 18

On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were convicted, i.e., estafa through falsification of public documents under Art. 171, par. 4, of The Revised Penal Code, are intentional felonies for which liability attaches only when it is shown that the malefactors acted with criminal intent or malice. 19If what is proven is mere judgmental error on the part of the person committing the act, no malice or criminal intent can be rightfully imputed to him. Was criminal intent then demonstrated to justify petitioners' conviction? It does not so appear in the case at bar.

Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. As a general rule, ignorance or mistake as to particular facts, honest and real, will exempt the doer from felonious responsibility. The exception of course is neglect in the discharge of a duty or indifference to consequences, which is equivalent to a criminal intent, for in this instance, the element of malicious intent is supplied by the element of negligence and imprudence. 20 In the instant case, there are clear manifestations of good faith and lack of criminal intent on the part of petitioners.

First. When Jowil Red showed up at the meeting of the Sanggunian on 7 January 1986, what he presented to Mayor Francisco Lecaroz was a mere telegram purportedly sent by Imee Marcos-Manotoc informing him of his supposed appointment to the SB, together with a photocopy of a "Mass Appointment." Without authenticated copies of the appointment papers, Red had no right to assume office as KB representative to the Sanggunian, and petitioner Mayor Lecaroz had every right to withhold recognition, as he did, of Red as a member of the Sanggunian.

Second. It appears from the records that although Red received his appointment papers signed by President Marcos in January 1986, he forwarded the same to Mayor Francisco Lecaroz only on 23 April 1986 during which time President Marcos had already been deposed and President Aquino had already taken over the helm of government. On 25 March 1986 the Freedom Constitution came into being providing in Sec. 2 of Art. III thereof that —

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 of their successors if such appointment is made within a period of one (1) year from February 26, 1986. (emphasis supplied).

Duty bound to observe the constitutional mandate, petitioner Francisco Lecaroz through the provincial governor forwarded the papers of Jowil Red to then Minister of Interior and Local Government Aquilino Pimentel, Jr., requesting advice on the validity of the appointment signed by former President Marcos. The response was the issuance of MILG Provincial Memorandum-Circular No. 86-02 21 and Memorandum-Circular No. 86-17 22 stating that —

PROVINCIAL MEMORANDUM-CIRCULAR NO. 86-02

2. That newly elected KB Federation Presidents, without their respective authenticated appointments from the president, cannot, in any way, represent their associations in any sangguniang bayan/sangguniang panlalawigan, as the case may be, although they are still considered presidents of their federations by virtue of the July 1985 elections.

MEMORANDUM CIRCULAR NO. 86-17

It is informed, however, that until replaced by the Office of the President or by this Ministry the appointive members of the various Sangguniang Bayan, Sangguniang Panlunsod, and the Sangguniang Panlalawigan shall continue to hold office and to receive compensation due them under existing laws, rules and regulations.

The pertinent provisions of the Freedom Constitution and the implementing MILG Circulars virtually confirmed the right of incumbent KB Federation Presidents to hold and maintain their positions until duly replaced either by the President herself or by the Interior Ministry. Explicit therein was the caveat that newly elected KB Federation Presidents could not assume the right to represent their respective associations in any Sanggunian unless their appointments were authenticated by then President Aquino herself. Truly, prudence impelled Mayor Lecaroz to take the necessary steps to verify the legitimacy of Red's appointment to the Sanggunian.

Third. Petitioners presented six (6) certified copies of opinions of the Secretaries of Justice of Presidents Macapagal, Marcos and Aquino concerning the doctrine of holdover. These consistently expressed the view espoused by the executive branch for more than thirty (30) years that the mere fixing of the term of office in a statute without an express prohibition against holdover is not indicative of a legislative intent to prohibit it, in light of the legal principle that just as nature abhors a vacuum so does the law abhor a vacancy in the

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government. 23Reliance by petitioners on these opinions, as, well as on the pertinent directives of the then Ministry of Interior and Local Government, provided them with an unassailable status of good faith in holding over and acting on such basis; and,

Fourth. It is difficult to accept that a person, particularly one who is highly regarded and respected in the community, would deliberately blemish his good name, and worse, involve his own son in a misconduct for a measly sum of P23,675.00, such as this case before us. As aptly deduced by Justice Del Rosario. 24

If I were to commit a crime, would I involve my son in it? And if I were a town mayor, would I ruin my name for the measly sum of P1,894.00 a month? My natural instinct as a father to protect my own son and the desire, basic in every man, to preserve one's honor and reputation would suggest a resounding NO to both questions. But the prosecution ventured to prove in these thirteen cases that precisely because they were father and son and despite the relatively small amount involved, accused Mayor Francisco Lecaroz conspired with Lenlie Lecaroz to falsify several municipal payrolls for the purpose of swindling their own town of the amount of P1,894,00 a month, and the majority has found them guilty. I find disconhfort with this verdict basically for the reason that there was no criminal intent on their part to falsify any document or to swindle the government.

The rule is that any mistake on a doubtful or difficult question of law may be the basis of good faith. 25 InCabungcal v. Cordova 26 we affirmed the doctrine that an erroneous interpretation of the meaning of the provisions of an ordinance by a city mayor does not amount to bad faith that would entitle an aggrieved party to damages against that official. We reiterated this principle in Mabutol v. Pascual 27 which held that public officials may not be liable for damages in the discharge of their official functions absent any bad faith. Sanders v. Veridiano II 28 expanded the concept by declaring that under the law on public officers, acts done in the performance of official duty are protected by the presumption of good faith.

In ascribing malice and bad faith to petitioner Mayor Lecaroz, the Sandiganbayan cited two (2) circumstances which purportedly indicated criminal intent. It pointed out that the name of accused Lenlie Lecaroz was not in the municipal payroll for the first quincena of 1986 which meant that his term had finally ended, and that the reinstatement of Lenlie Lecaroz by Mayor Francisco Lecaroz in the payroll periods from 15 January 1986 and thereafter for the next twelve and a half (12-1/2) months was for no other purpose than to enable him to draw salaries from the municipality. 29 There is however no evidence, documentary or otherwise, that Mayor Francisco Lecaroz himself caused the name of Lenlie Lecaroz to be dropped from the payroll for the first quincena of January 1986. On the contrary, it is significant that while Lenlie Lecaroz' name did not appear in the payroll for the first quincena of January 1986, yet, in the payroll for the next quincena accused Lenlie Lecaroz was paid for both the first and second quincenas, and not merely for the second half of the month which would have been the case if he was actually "dropped" from the payroll for the first fifteen (15) days and then "reinstated" in the succeeding payroll period, as held by the court a quo.

From all indications, it is possible that the omission was due to the inadequate documentation of Red's appointment to and assumption of office, or the result of a mere clerical error which was later rectified in the succeeding payroll. This however cannot be confirmed by the evidence at hand. But since a doubt is now created about the import of such omission, the principle of equipoise should properly apply. This rule demands that all reasonable doubt intended to demonstrate error and not a crime should be resolved in favor of the accused. If the inculpatory facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other with his guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. 30

Petitioners have been convicted for falsification of public documents through an untruthful narration of facts under Art. 171, par. 4, of The Revised Penal Code. For the offense to be established, the following elements must concur: (a) the offender makes in a document statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated; (c) the facts narrated by the offender are absolutely false; and, (d) the perversion of truth in the narration of facts was made with the wrongful intent of injuring a third person.

The first and third elements of the offense have not been established in this case. In approving the payment of salaries to Lenlie Lecaroz, Mayor Francisco Lecaroz signed uniformly-worded certifications thus —

I hereby certify on my official oath that the above payroll is correct, and that the services above stated have been duly rendered. Payment for such services is also hereby approved from the appropriations indicated.

When Mayor Lecaroz certified to the correctness of the payroll, he was making not a narration of facts but a conclusion of law expressing his belief that Lenlie Lecaroz was legally holding over as member of the Sanggunian and thus entitled to the emoluments attached to the position. This is an opinion undoubtedly involving a legal matter, and any "misrepresentation" of this kind cannot constitute the crime of false pretenses. 31 In People v.Yanza 32 we ruled —

Now then, considering that when defendant certified she was eligible for the position, she practically wrote a conclusion of law which turned out to be inexact or erroneous — not entirely groundless — we are all of the opinion that she may not be declared guilty of falsification, specially because the law which she has allegedly violated (Art. 171, Revised Penal Code, in connection with other provisions), punishes the making of untruthful statements in a narration of facts — emphasis on facts . . . . Unfortunately, she made a mistake of judgment; but she could not be held thereby to have intentionally made a false statement of fact in violation of Art. 171 above-mentioned.

The third element requiring that the narration of facts be absolutely false is not even adequately satisfied as the belief of Mayor Francisco Lecaroz that Lenlie Lecaroz was a holdover member of the Sanggunian was not entirely bereft of basis, anchored as it was on the universally accepted doctrine of holdover. La mera inexactitude no es bastante para integrar este delito. 33 If the statements are not altogether false, there being some colorable truth in them, the crime of falsification is deemed not to have been committed.

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Finally, contrary to the finding of the Sandiganbayan, we hold that conspiracy was not proved in this case. The court a quo used as indication of conspiracy the fact that the accused Mayor certified the payrolls authorizing payment of compensation to his son Lenlie Lecaroz and that as a consequence thereof the latter collected his salaries. These are not legally acceptable indicia, for they are the very same acts alleged in the Information as constituting the crime of estafa through falsification. They cannot qualify as proof of complicity or unity of criminal intent. Conspiracy must be established separately from the crime itself and must meet the same degree of proof,i.e., proof beyond reasonable doubt. While conspiracy need not be established by direct evidence, for it may be inferred from the conduct of the accused before, during and after the commission of the crime, all taken together however, the evidence must reasonably be strong enough to show community of criminal design. 34

Perhaps subliminally aware of the paucity of evidence to support it, and if only to buttress its finding of conspiracy, the Sandiganbayan stressed that the two accused are father and son. Granting that this is not even ad hominem, we are unaware of any presumption in law that a conspiracy exists simply because the conspirators are father and son or related by blood.

WHEREFORE, the petition is GRANTED. The assailed Decision of 7 October 1994 and Resolution of 1 October 1997 of the Sandiganbayan are REVERSED and SET ASIDE, and petitioners FRANCISCO M. LECAROZ and LENLIE LECAROZ are ACQUITTED of all the thirteen (13) counts of estafa through falsification of public documents (Crim. Cases Nos. 13904-13916). The bail bonds posted for their provisional liberty are cancelled and released. Costs de oficio.

SO ORDERED.

Puno, Mendoza, Quisumbing and Buena, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, petitioner, vs.HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.

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

BELLOSILLO, J.:

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

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

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the Philippines, maintain that theproviso 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", 4since it was Congress through the

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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 —

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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

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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 expresslyprovided 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

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

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

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

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

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo and Quiason, JJ., concur.

Padilla, J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-52245 January 22, 1980

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

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

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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

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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.

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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).

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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.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-34854 November 20, 1978

FORTUNATO R. PAMIL, petitioner-appellant, vs.HONORABLE VICTORINO C. TELERON, as Judge of the Court of First Instance of Bohol, Branch III, and REV. FR. MARGARITO R. GONZAGA, respondents-appellees.

Urbano H. Lagunay for petitioner.

Cristeto O. Cimagala for respondents.

FERNANDO, J.:

The novel question raised in this certiorari proceeding concerns the eligibility of an ecclesiastic to an elective municipal position. Private respondent, Father Margarito R. Gonzaga, was, in 1971, elected to the position of municipal mayor of Alburquerque, Bohol. 1 Therefore, he was duly proclaimed. A suit for quo warranto was then filed by petitioner, himself an aspirant for the office, for his disqualification 2 based on this Administrative Code provision: "In no case shall there be elected or appointed to a municipal office ecclesiastics, soldiers in active service, persons receiving salaries or compensation from provincial or national funds, or contractors for public works of the municipality." 3 The suit did not prosper, respondent Judge sustaining the right of Father Gonzaga to the office of municipal mayor. He ruled that such statutory ineligibility was impliedly repealed by the Election Code of 1971. The matter was then elevated to this Tribunal by

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petitioner. It is his contention that there was no such implied repeal, that it is still in full force and effect. Thus was the specific question raised.

There is no clear-cut answer from this Tribunal. After a lengthy and protracted deliberation, the Court is divided on the issue. Seven members of the Court are of the view that the judgment should be affirmed as the challenged provision is no longer operative either because it was superseded by the 1935 Constitution or repealed. Outside of the writer of this opinion, six other Justices are of this mind They are Justices Teehankee, Muñoz Palma Concepcion Jr., Santos, Fernandez, and Guerrero. For them, the overriding principle of the supremacy of the Constitution or, at the very least, the repeal of such provision bars a reversal. 4 The remaining five members of this Court, Chief Justice Castro, Justices Barredo, Makasiar, Antonio, and Aquino, on the other hand, hold the position that such a prohibition against an ecclesiastic running for elective office is not tainted with any constitutional infirmity.

The vote is thus indecisive. While five members of the Court constitute a minority, the vote of the remaining seven does not suffice to render the challenged provision ineffective. Section 2175 of the Revised Administrative Code, as far as ecclesiastics are concerned, must be accorded respect. The presumption of validity calls for its application. Under the circumstances, certiorari lies. That is the conclusion arrived at by the writer of this opinion, joined by Justice Concepcion Jr., Santos, Fernandez, and Guerrero. They have no choice then but to vote for the reversal of the lower court decision and declare ineligible respondent Father Margarito R. Gonzaga for the office of municipal mayor. With the aforesaid five other members, led by the Chief Justice, entertaining no doubt as to his lack of eligibility, this petition for certiorari must be granted.

Except for the dispositive part announcing the judgment of the Court, the remainder of this opinion sets forth the reasons why there are constitutional objections to the continuing force and effectivity of Section 2175 as far as ecclesiastics are concerned.

1. The Revised Administrative Code was enacted in 1917. In the 1935 Constitution, as it is now under the present Charter, it is explicitly declared: "No religious test shall be required for the exercise of civil or political rights." 5 The principle of the paramount character of the fundamental law 6 thus comes into play. There are previous rulings to that effect. 6 The ban imposed by the Administrative Code cannot survive. So the writer of this opinion would hold.

2. This is to conform to this provision of the 1935 Charter: "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, and all references in such laws to the government or officials of the Philippines shall be construed, in so far as applicable, to refer to the Government and corresponding officials under this Constitution." 7 It was first applied in People v. Linsangan, 8 decided in December, 1935, barely a month after that Constitution took effect. This Court held that Section 2718 of the Revised Administrative Code that would allow the prosecution of a person who remains delinquent in the payment of cedula tax, 9 was no longer in force. As stated by the then Justice, later Chief Justice, Abad Santos, after setting forth that the Constitution prohibits the imprisonment for debt or non-payment of poll tax: 10 "It seems too clear to require demonstration that section 2718 of the Revised Administrative Code is inconsistent with section 1, clause 12, of Article Ill of the Constitution in that, while the former authorizes imprisonment for non-payment of the poll or cedula tax, the latter forbids it. It follows that upon the inauguration of the Government of the Commonwealth, said section 2718 of the Revised Administrative Code became inoperative, and no judgment of conviction can be based thereon." 11

De los Santos v. Mallare 12 came next. The President, under the Revised Administrative Code, could remove at pleasure any of the appointive officials under the Charter of the City of Baguio. 13 Relying on such a provision, the then President Quirino removed petitioner De los Santos, who was appointed City Engineer of Baguio on July 16, 1946, and chose in his place respondent Gil R. Mallare. Why such a power could not pass the test of validity under the 1935 Constitution was pointed out by Justice Tuason thus: "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 the petitioner was appointed." 14

Martinez v. Morfe, 15 a 1972 decision, is likewise in point. In the light of the cited provision of the 1935 Constitution, as authoritatively construed, Article 145 of the Revised Penal Code was found to be inoperative. As therein provided, the penalty of prision correccional is imposed on any public officer or employee who, while the Congress was in regular or special session, would arrest or search a member thereof, except in case he had committed a crime punishable by a penalty higher than prision mayor. This Court ruled that the Revised Penal Code extended unduly the legislative privilege of freedom from arrest as ordained in the Constitution. 16 Such a provision then was contrary to and in defiance of the clear expression of the will of the Constitutional Convention of 1934 that such immunity was never intended to exempt members of a legislative body from an arrest for a criminal offense, the phrase treason, felony and breach of the peace being all-inclusive. Reference was likewise made to the prevailing American doctrine to that effect as enunciated by Williamson v. United States. 17

3. It would be an unjustified departure from a settled principle of the applicable construction of the provision on what laws remain operative after 1935 if the plea of petitioner in this case were to be heeded. The challenged Administrative Code provision, certainly insofar as it declares ineligible ecclesiastics to any elective or appointive office, is, on its face, inconsistent with the religious freedom guaranteed by the Constitution. To so exclude them is to impose a religious test. Torcaso v. Watkins 18 an American Supreme Court decision, has persuasive weight. What was there involved was the validity of a provision in the Maryland Constitution prescribing that "no religious test ought ever to be required as a disqualification for any office or profit or trust in this State, other than a declaration of belief in the existence of God ..." Such a constitutional requirement was assailed as contrary to the First Amendment of the United States Constitution by an appointee to the office of notary public in Maryland, who was refused a commission as he would not declare a belief in God. He failed in the Maryland Court of Appeals but prevailed in the United States Supreme Court, which reversed the state court decision. It could not have been otherwise. As emphatically declared by Justice Black: "this Maryland religious test for public office unconstitutionally invades the appellant's freedom of belief and religion and therefore cannot be enforced against him." 19

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The analogy appears to be obvious. In that case, it was lack of belief in God that was a disqualification. Here being an ecclesiastic and therefore professing a religious faith suffices to disqualify for a public office. There is thus an incompatibility between the Administrative Code provision relied upon by petitioner and an express constitutional mandate. It is not a valid argument against this conclusion to assert that under the Philippine Autonomy Act of 1916, there was such a prohibition against a religious test, and yet such a ban on holding a municipal position had not been nullified. It suffices to answer that no question was raised as to its validity. In Vilar v. Paraiso, 20 decided under the 1935 Constitution, it was assumed that there was no conflict with the fundamental law.

4. This is the first case then where this Court has to face squarely such an issue. This excerpt from the opinion of Justice Moreland in the leading case of McGirr v. Hamilton, 21 a 1915 decision, has a force unimpaired by the passage of time: "Relative to the theory that Act No. 1627 has stood so long and been silently acquiesced in for so great a length of time that it should not be disturbed, it may be said that the fact that certain individuals have, by ignorance or neglect, failed to claim their fundamental rights, furnishes no reason why another individual, alert to his rights and their proper enforcement, should be prevented from asserting and sustaining those rights. The fact that Smith and Jones have failed to demand their constitutional rights furnishes no basis for the refusal to consider and uphold the constitutional rights of Richard Roe In the case of Sadler v. Langham (34 Ala. 311), this same question was under consideration and the court in resolving it said: 'It may be urged, that these statutes have stood, and been silently acquiesced in for so great a length of time, they should not now be disturbed. We are sensible of the force of this argument. It will be observed, however, that in Tennessee, the decision which declared the private road law unconstitutional was pronounced forty years after the enact. judgment of the statute; and in New York, after seventy years had elapsed. It is, perhaps, never too late to re- establish constitutional rights, the observance of which had been silently neglected." 22 To support such a conclusion, no less than the great Chief Justice Marshall, speaking for this Court in United States v. More, in disposing of a contention by one of the parties as to appellate jurisdiction having been previously exercised and therefore beyond dispute was likewise relied upon. Thus: "No question was made in that case as to the jurisdiction petition. It passed sub silentio, and the court does not consider itself bound by that case. 23 So it should be in this litigation. As set forth at the outset, it is not even necessary to annul the challenged Administrative Code provision. It is merely declared inoperative by virtue of the mandate of the 1935 Constitution, similarly found in the present Charter.

5. Nonetheless, tie above view failed to obtain the necessary eight votes needed to give it binding force. The attack on the continuing effectivity of Section 2175 having failed, it must be, as noted at the outset, given full force and application.

WHEREFORE, the petition for certiorari is granted. The judgment a quo is reversed and set aside. Respondent Gonzaga is hereby ordered immediately to vacate the mayoralty of the municipality of Albuquerque, Bohol, there being a failure to elect. No pronouncement as to costs.

Concepcion, Jr., Santos, Fernandez and Guerrero, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 83896 February 22, 1991

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

G.R. No. 83815 February 22, 1991

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

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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 andmandamus, as well as a temporary restraining order directing public respondents therein to cease and desist from holding, in addition to their primary positions, dual or multiple positions other than those authorized by the 1987 Constitution and from receiving any salaries, allowances, per diems and other forms of privileges and the like appurtenant to their questioned positions, and compelling public respondents to return, reimburse or refund any and all amounts or benefits that they may have received from such positions.

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

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

Sec. 7. . . . . .

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

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

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

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

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

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

We rule in the negative.

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

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

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

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

The blatant betrayal of public trust evolved into one of the serious causes of discontent with the Marcos regime. It was therefore quite inevitable and in consonance with the overwhelming sentiment of the people that the 1986 Constitutional Commission, convened as it was after the people successfully unseated former President Marcos, should draft into its proposed Constitution the provisions under consideration which are envisioned to remedy, if not correct, the evils that flow from the holding of multiple governmental offices and

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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.

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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. 17Sections 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 MonetaryBoard. 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-officioChairman 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

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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.

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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.

Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Medialdea, Regalado and Davide, Jr., JJ., concur.

Sarmiento and Griño-Aquino, JJ., took no part.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-68159 March 18, 1985

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

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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?

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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.

Teehankee, Makasiar, Aquino, Concepcion Jr., Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente, Cuevas and Alampay, JJ., concur.

Fernando, C.J., and Abad Santos, J., took no part.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

A.M. No. 88-7-1861-RTC October 5, 1988

IN RE: DESIGNATION OF JUDGE RODOLFO U. MANZANO AS MEMBER OF THE ILOCOS NORTE PROVINCIAL COMMITTEE ON JUSTICE.

PADILLA, J.:

On 4 July 1988, Judge Rodolfo U. Manzano, Executive Judge, RTC, Bangui, Ilocos Norte, Branch 19, sent this Court a letter which reads:

Hon. Marcelo Fernan Chief Justice of the Supreme Court of the Philippines Manila

Thru channels: Hon. Leo Medialdea Court Administrator Supreme Court of the Philippines

Sir:

By Executive Order RF6-04 issued on June 21, 1988 by the Honorable Provincial Governor of Ilocos Norte, Hon. Rodolfo C. Farinas, I was designated as a member of the Ilocos Norte Provincial Committee on Justice created pursuant to Presidential Executive Order No. 856 of 12 December 1986, as amended by Executive Order No. 326 of

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June 1, 1988. In consonance with Executive Order RF6-04, the Honorable Provincial Governor of Ilocos Norte issued my appointment as a member of the Committee. For your ready reference, I am enclosing herewith machine copies of Executive Order RF6-04 and the appointment.

Before I may accept the appointment and enter in the discharge of the powers and duties of the position as member of the Ilocos (Norte) Provincial Committee on Justice, may I have the honor to request for the issuance by the Honorable Supreme Court of a Resolution, as follows:

(1) Authorizing me to accept the appointment and to as assume and discharge the powers and duties attached to the said position;

(2) Considering my membership in the Committee as neither violative of the Independence of the Judiciary nor a violation of Section 12, Article VIII, or of the second paragraph of Section .7, Article IX (B), both of the Constitution, and will not in any way amount to an abandonment of my present position as Executive Judge of Branch XIX, Regional Trial Court, First Judicial Region, and as a member of the Judiciary; and

(3) Consider my membership in the said Committee as part of the primary functions of an Executive Judge.

May I please be favored soon by your action on this request.

Very respectfully yours,

(Sgd) RODOLFO U. MANZANOJudge

An examination of Executive Order No. 856, as amended, reveals that Provincial/City Committees on Justice are created to insure the speedy disposition of cases of detainees, particularly those involving the poor and indigent ones, thus alleviating jail congestion and improving local jail conditions. Among the functions of the Committee are—

3.3 Receive complaints against any apprehending officer, jail warden, final or judge who may be found to have committed abuses in the discharge of his duties and refer the same to proper authority for appropriate action;

3.5 Recommend revision of any law or regulation which is believed prejudicial to the proper administration of criminal justice.

It is evident that such Provincial/City Committees on Justice perform administrative functions. Administrative functions are those which involve the regulation and control over the conduct and affairs of individuals for; their own welfare and the promulgation of rules and regulations to better carry out the policy of the legislature or such as are devolved upon the administrative agency by the organic law of its existence (Nasipit Integrated Arrastre and Stevedoring Services Inc., vs. Tapucar, SP-07599-R, 29 September 1978, Blacks Law Dictionary).

Furthermore, under Executive Order No. 326 amending Executive Order No. 856, it is provided that—

Section 6. Supervision.—The Provincial/City Committees on Justice shall be under the supervision of the Secretary of justice Quarterly accomplishment reports shall be submitted to the Office of the Secretary of Justice.

Under the Constitution, the members of the Supreme Court and other courts established by law shag not be designated to any agency performing quasi- judicial or administrative functions (Section 12, Art. VIII, Constitution).

Considering that membership of Judge Manzano in the Ilocos Norte Provincial Committee on Justice, which discharges a administrative functions, will be in violation of the Constitution, the Court is constrained to deny his request.

Former Chief Justice Enrique M. Fernando in his concurring opinion in the case of Garcia vs. Macaraig (39 SCRA 106) ably sets forth:

2. While the doctrine of separation of powers is a relative theory not to be enforced with pedantic rigor, the practical demands of government precluding its doctrinaire application, it cannot justify a member of the judiciary being required to assume a position or perform a duty non-judicial in character. That is implicit in the principle. Otherwise there is a plain departure from its command. The essence of the trust reposed in him is to decide. Only a higher court, as was emphasized by Justice Barredo, can pass on his actuation. He is not a subordinate of an executive or legislative official, however eminent. It is indispensable that there be no exception to the rigidity of such a norm if he is, as expected, to be confined to the task of adjudication. Fidelity to his sworn responsibility no less than the maintenance of respect for the judiciary can be satisfied with nothing less.

This declaration does not mean that RTC Judges should adopt an attitude of monastic insensibility or unbecoming indifference to Province/City Committee on Justice. As incumbent RTC Judges, they form part of the structure of government. Their integrity and performance in the adjudication of cases contribute to the solidity of such structure. As public officials, they are trustees of an orderly society. Even as non-members of Provincial/City Committees on Justice, RTC judges should render assistance to said Committees to help

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promote the laudable purposes for which they exist, but only when such assistance may be reasonably incidental to the fulfillment of their judicial duties.

ACCORDINGLY, the aforesaid request of Judge Rodolfo U. Manzano is DENIED.

SO ORDERED.

Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Medialdea and Regalado, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-23258 July 1, 1967

ROBERTO R. MONROY, petitioner, vs.HON. COURT OF APPEALS and FELIPE DEL ROSARIO, respondent.

E. M. Fernando, E. Quisumbing-Fernando and Norberto Quisumbing for petitioner.Sycip, Salazar, Luna and Associates for respondents.

BENGZON, J.P., J.:

Petitioner Roberto Monroy was the incumbent Mayor of Navotas, Rizal, when on September 15, 1961, his certificate of candidacy as representative of the first district of Rizal in the forthcoming elections was filed with the Commission on Elections. Three days later, or on September 18, 1961, petitioner filed a letter withdrawing said certificate of candidacy. The Commission on Elections, per resolution,1 approved the withdrawal. But on September 21, 1961, respondent Felipe del Rosario, then the vice-mayor of Navotas, took his oath of office as municipal mayor on the theory that petitioner had forfeited the said office upon his filing of the certificate of candidacy in question.

Upon these facts, the Court of First Instance of Rizal, held in the suit for injunction instituted by petitioner against respondents that (a) the former had ceased to be mayor of Navotas, Rizal, after his certificate of candidacy was filed on September 15, 1961; (b) respondent del Rosario became municipal mayor upon his having assumed office as such on September 21, 1961; (c) petitioner must reimburse, as actual damages, the salaries to which respondent was entitled as Mayor from September 21, 1961 up to the time he can reassume said office; and (d) petitioner must pay respondent P1,000.00 as moral damages.1äwphï1.ñët

This judgment was, on appeal by petitioner to the Court of Appeals, affirmed in toto except for the award of moral damages which was eliminated. The same Court reaffirmed its stand upon petitioner's filing a motion to reconsider. Hence, this petition for certiorari to review the ruling of the Court of Appeals.

Petitioner first argues that both the lower court and the Court of Appeals had done what they had no jurisdiction to do — review a resolution of the Commission on Elections. The submission is without merit.

The Constitution empowers the Commission on Elections to

x x x decide, save those involving the right to vote, all administrative questions affecting elections, including the determination of the number and location of polling places, and the appointment of election inspectors and of other election officials x x x . 2 (Emphasis supplied)

And the decisions, orders and rulings of the Commission on these administrative questions are reviewable only by the Supreme Court.3 Since the powers of the Commission are limited to matters connected with the "conduct of elections," necessarily its adjudicatory or quasi-judicial powers are likewise limited to controversies connected with the "conduct of elections." This phrase covers all the administrative process of preparing and operating the election machinery so that the people could exercise their right to vote at the given time.4 All questions and controversies that may arise therefrom are to be resolved exclusively by the Commission, subject to review only by the Supreme Court.

However, in this case there appears to be no decision, order or ruling of the Commission on any administrative question or controversy. There was no dispute before the Commission. Respondent never contested the filing of petitioner's certificate of candidacy. Neither has he disputed before that body the withdrawal thereof. And even if there was a controversy before the Commission, the same did not and could

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not possibly have anything to do with the conduct of elections. What the parties are actually controverting is whether or not petitioner was still the municipal mayor after September 15, 1961. This purely legal dispute has absolutely no bearing or effect on the conduct of the elections for the seat of Congressman for the first district of Rizal. The election can go on irrespective of whether petitioner is considered resigned from his position of municipal mayor or not. The only interest and for that matter, jurisdiction, of the Commission on Elections in this regard is to know who are the running candidates for the forthcoming elections, for that affects the conduct of election. So when petitioner withdrew the certificate announcing his candidacy for Congressman, as far as the Commission could be concerned, petitioner was no longer interested in running for that seat. The matter of his having forfeited his present position and the possible legal effect thereon by the withdrawal of his certificate was completely out of the picture. Hence, that purely legal question properly fell within the cognizance of the courts.

Now the withdrawal of his certificate of candidacy did not restore petitioner to his former position. Sec. 27 of the Rev. Election Code providing that —

Any elective provincial, municipal or city official running for an office, other then the one which he is actually holding, shall be considered resigned from his office from the moment of the filing of his certificate of candidacy,"

makes the forfeiture automatic and permanently effective upon the filing of the certificate of for another office. Only the moment and act of filing are considered. Once the certificate is filed, the seat is forfeited forever and nothing save a new election or appointment can restore the ousted official. Thus, as We had occasion to remark, through Justice J.B.L. Reyes, in Castro v. Gatuslao, 98 Phil, 94, 196:

x x x The wording of the law plainly indicates that only the date of filing of the certificate of candidacy should be taken into account. The law does not make the forfeiture dependent upon future contingencies, unforeseen and unforeseeable since the vacating is expressly made as of the moment of the filing of the certificate of candidacy x x x . (Emphasis supplied)

Petitioner's contention that the certificate of candidacy was filed without his knowledge and consent and, hence, the Commission's approval of its withdrawal invalidated such certificate for all legal purposes, is untenable. It nowhere appears that the Commission's resolution expressly invalidated the certificate. The withdrawal of a certificate of candidacy does not necessarily render the certificate void ab initio. Once filed, the permanent legal effects produced thereby remain even if the certificate itself be subsequently withdrawn. Moreover, both the trial court and the Court of Appeals expressly found as a fact that the certificate in question was filed with petitioner's knowledge and consent. And since the nature of the remedy taken by petitioner before Us would allow a discussion of purely legal questions only, such fact is deemed conceded.5

Petitioner would next maintain that respondent Court of Appeals likewise erred in affirming a lower court judgment requiring petitioner to pay respondent Del Rosario by way of actual damages the salaries he was allegedly entitled to receive from September 21, 1961, to the date of petitioner's vacation of his office as mayor. In support of this he relies solely upon Rodriguez v. Tan, 91 Phil. 724, holding that a senator who had been proclaimed and had assumed office but was later on ousted in an election protest, is a de facto officer during the time he held the office of senator, and can retain the emoluments received even as against the successful protestant. Petitioner's factual premise is the appellate court's finding that he was a de facto officer when he continued occupying the office of mayor after September 15, 1961.

However, We agree with the Court of Appeals that the Rodriguez case is not applicable here for absence of factual and legal similarities. The Rodriguez case involved a senator who had been proclaimed as duly elected, assumed the office and was subsequently ousted as a result of an election contest. These peculiar facts called for the application of an established precedent in this jurisdiction that the candidate duly proclaimed must assume office notwithstanding a protest filed against him and can retain the compensation paid during his incumbency. But the case at bar does not involve a proclaimed elective official who will be ousted because of an election contest. The present case for injunction and quo warranto involves the forfeiture of the office of municipal mayor by the incumbent occupant thereof and the claim to that office by the vice-mayor because of the operation of Sec. 27 of the Rev. Election Code. The established precedent invoked in the Rodriguez case can not therefore be applied in this case.

It is the general rule then, i.e., "that the rightful incumbent of a public office may recover from an officer de factothe salary received by the latter during the time of his wrongful tenure, even though he entered into the office in good faith and under color of title"6 that applies in the present case. The resulting hardship occasioned by the operation of this rule to the de facto officer who did actual work is recognized; but it is far more cogently acknowledged that the de facto doctrine has been formulated, not for the protection of the de facto officer principally, but rather for the protection of the public and individuals who get involved in the official acts of persons discharging the duties of an office without being lawful officers.7 The question of compensation involves different principles and concepts however. Here, it is possession of title, not of the office, that is decisive. A de facto officer, not having good title, takes the salaries at his risk and must therefore account to the de jure officer for whatever amount of salary he received during the period of his wrongful retention of the public office.8

Wherefore, finding no error in the judgment appealed from, the same is, as it is hereby, affirmed in toto. Costs against petitioner. So ordered.

Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar, and Angeles, JJ., concur.Arsenio, J., is on leave.Sanchez, Castro and Fernando, JJ., took no part.

Public Officers and Election Laws 80

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 90762 May 20, 1991

LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner, vs.LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of the Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer FLORENCIO LUNA,respondents.

Zozimo G. Alegre for petitioner.

The Provincial Attorney for respondents.

R E S O L U T I O N

GUTIERREZ, JR., J.:p

This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied the petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In the August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as Acting Vice-Governor and, therefore, his designation was invalid. In this motion, the primary issue is the right to emoluments while actually discharging the duties of the office.

The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte.

On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte.

The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988.

On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte.

In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of the petitioner as the temporary Vice- Governor is not necessary since the Vice-Governor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices.

As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent portion of the resolution reads:

WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that there is no permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla assumed the Office of the Vice-Governor after he took his oath of office to said position.

WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid official communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law.

WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable Rogelio L. Granados and the Honorable Renato M. Rances.

RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting Vice-Governor of Leyte. (Rollo, p. 27)

The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion.

On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion. The pertinent portion of the letter reads:

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This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to Provincial Administrator Tente U. Quintero dated June 22, 1989, which states in substance, that "there is no succession provided for in case of temporary vacancy in the office of the vice-governor and that the designation of a temporary vice-governor is not necessary.

We hold the view that the designation extended by the Secretary of Local Government in favor of one of the Sangguniang Panlalawigan Members of Leyte to temporarily discharge the powers and duties of the vice-governor during the pendency of the electoral controversy in the Office of the Governor, does not contradict the stand we have on the matter. The fact that the Sangguniang Panlalawigan member was temporarily designated to perform the functions of the vice-governor could not be considered that the Sangguniang member succeeds to the office of the latter, for it is basic that designation is merely an imposition of additional duties to be performed by the designee in addition to the official functions attached to his office. Furthermore, the necessity of designating an official to temporarily perform the functions of a particular public office, would depend on the discretion of the appointing authority and the prevailing circumstances in a given area and by taking into consideration the best interest of public service.

On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the electoral controversy in the Office of the Governor has not yet been settled, calls for the designation of the Sangguniang Member to act as vice-governor temporarily. (Rollo, p. 31)

In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be modified accordingly. The letter states:

In view thereof, please correct previous actions made by your office and those of the Sangguniang Panlalawigan which may have tended to discredit the validity of Atty. Aurelio Menzon's designation as acting vice-governor, including the payment of his salary as Acting Vice-Governor, if he was deprived of such. (Rollo, p. 32)

On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier request.

Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of Vice-Governor.

Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting Vice-Governor of Leyte.

In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was proclaimed the Governor of the province of Leyte.

During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor.

On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.

On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which he received while acting as the Vice-Governor of Leyte.

On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the Vice-Governor while he was acting as such.

The petitioner interposes the following reason for the allowance of the motion for reconsideration:

THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES RENDERED AS DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE AND EQUITY.

The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2) Whether or not the Secretary of Local Government has the authority to make temporary appointments?

The respondents argue that there exists no vacancy in the Office of the Vice-Governor which requires the appointment of the petitioner. They further allege that if indeed there was a need to appoint an acting Vice-Governor, the power to appoint is net vested in the Secretary of Local Government. Absent any provision in the Local Government Code on the mode of succession in case of a temporary vacancy in the Office of the Vice-Governor, they claim that this constitutes an internal problem of the Sangguniang Panlalawigan and was thus for it solely to resolve.

The arguments are of doubtful validity.

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The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. (see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61)

Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor.

There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Governor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority.

Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local Government had the authority to designate the petitioner.

We hold in the affirmative.

The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is wanting.

The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice-Governor. For about two years after the governatorial elections, there had been no de jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case before the Commission on Elections.

The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause disruptions and delays in the delivery of basic services to the people and in the proper management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any remedy was ever intended by the Local Government Code.

Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid the temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-Governor.

The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected and reconsidered his previous position and acknowledged the need for an acting Vice-Governor.

It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise.

A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government.

In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing.

Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for higher officials to decide or, in proper cases, for the judiciary to adjudicate. As shown in this case where for about two years there was only an acting Governor steering the leadership of the province of Leyte, the urgency of filling the vacancy in the Office of the Vice-Governor to free the hands of the acting Governor to handle provincial problems and to serve as the buffer in case something might happen to the acting Governor becomes unquestionable. We do not have to dwell ourselves into the fact that nothing happened to acting Governor Petilla during the two-year period. The contingency of having simultaneous vacancies in both offices cannot just be set aside. It was best for Leyte to have a full-time Governor and an acting Vice-Governor. Service to the public is the primary concern of those in the government. It is a continuous duty unbridled by any political considerations.

The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the intent to provide for continuity in the performance of the duties of the Vice-Governor.

The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz:

Public Officers and Election Laws 83

Section 49:

In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently incapacitated

to discharge the functions of his office the sangguniang panlalawigan . . . member who obtained

the highest number of votes in the election immediately preceding, . . . shall assume the office for the unexpired term of the Vice-Governor. . . .

By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in extending the temporary appointment.

In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is indubitable. The compensation, however, to be remunerated to the petitioner, following the example in Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against double compensation must only be such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor.

And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.

There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra.

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

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

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

SO ORDERED.

Fernan C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

SUPREME COURTManila

EN BANC

G. R. No. 103903September 11, 1992 -versus-

Public Officers and Election Laws

MELANIO D. SAMPAYAN, DIEGO L. TURLA, JR., and LEONARDO G. TIOZON,

Petitioners,

RAUL A. DAZA, HON. CAMILO SABIO, as Secretary of the House of Representatives, MR. JOSE MARIA TUAÑO, as Officer-in-Charge, General Services Division of the House of Representatives, MRS. ROSALINDA G. MEDINA, as Chief Accountant of the House of Representatives and the HON. COMMISSION ON AUDIT, Respondents.

84

R E S O L U T I O N ROMERO, J.: On February 18, 1992, petitioners, residents of the second Congressional District of Northern Samar, filed the instant Petition for Prohibition seeking to disqualify respondent Raul Daza, then incumbent congressman of the same congressional district, from continuing to exercise the functions of his office, on the ground that the latter is a greencard holder and a lawful permanent resident of the United States since October 16, 1974.

Petitioners allege that Mr. Daza has not, by any act or declaration, renounced his status as permanent resident, thereby violating Section 68 of Batas Pambansa Bilang 881 [Omnibus Election Code] and Section 18, Article XI of the 1987 Constitution.

On February 25, 1992, We required respondents to comment. On March 13, 1992, respondents, through the Solicitor General, filed a motion for extension of time to file their comment for a period of thirty days or until April 12, 1992. Reacting to the said motion, petitioners on March 30, 1992, manifested their opposition to the 30-day extension of time stating that such extension was excessive and prayed that respondent instead be granted only 10 days to file their comment. On May 5, 1992, the Court noted the manifestation and opposition.

On April 7, 1992, petitioners manifested before us that on April 2, 1992, they filed a petition before the COMELEC to disqualify respondent Daza from running in the recent May 11, 1992 elections on the basis of Section 68 of the Omnibus Election Code (SPC 92-084) and that the instant petition is concerned with the unlawful assumption of office by respondent Daza from June 30, 1987 until June 30, 1992. [1]

On April 10, 1992, respondent Congressman Daza filed his comment denying the fact that he is a permanent resident of the United States; that although he was accorded a permanent residency status on October 8, 1980 an evidenced by a letter order of the District Director, US Immigration and Naturalization Service, Los Angeles, U.S.A.,[2] he had long waived his status when he returned to the Philippines on August 12, 1985.[3]

On April 13, 1992, public respondent Camilo Sabio, Secretary General of the House of Representatives, Mr. Jose Mari Tuaño, an OIC of the General Services Division, Mrs. Rosalinda G. Medina, as Chief Accountant of the House of Representatives and Commission on Audit, filed their comment. They contend that if indeed Congressman Daza is a greencard holder and a permanent resident of the United States of America, then he should be removed from his position as Congressman. However, they opined that only Congressman Daza can best explain his true and correct status as a greencard holder. Until he files his comment to the petition, petitioners' prayer for temporary restraining order and writ of preliminary injunction should not be granted.[4]

Eight [8] days later, respondent Daza, reacting to the petition before the COMELEC [SPC 92-084] and hypothesizing that the case before the COMELEC would become moot should this Court find that his permanent resident status ceased when he was granted a US non-immigrant visa, asked this Court to direct the COMELEC to dismiss SPC No. 92-084.[5]

On May 5, 1992, petitioners filed their reply. On May 21, 1992, this Court gave due course to the petition and required the parties to file their respective memoranda.

The central issue to be resolved in this case is whether or not respondent Daza should be disqualified as a member of the House of Representatives for violation of Section 68 of the Omnibus Election Code. Petitioners insist that Congressman Daza should be disqualified from exercising the functions of his office being a permanent resident alien of the United States at the time when he filed his certificate of candidacy for the May 11, 1987 Elections. To buttress their contention, petitioners cite the recent case of Caasi v. Court of Appeals.[6]

In support of their charge that respondent Daza is a greencard holder, petitioners presented to Us a letter from the United States Department of Justice, Immigration and Naturalization Service [INS] which reads:[7]

File No. A20 988 618Date: Nov. 5, 1991LOS914732

Geraghty, O'Loughlin and Kenney

Attn: David C. Hutchinson

386 N. Nasbasha StreetSt. Paul, Minn. 55102-1308

SUBJECT:

Daza, Raul A. Your request was received in this office on ________________; please note the paragraph(s) checked below:

xxx xxx xxx

Public Officers and Election Laws 85

10. [XX] Other remarks: Service File A20 968 619 relating to Raul Daza reflects: subject became a Lawful Permanent Resident on Oct. 16, 1974. As far as we know object (sic) still has his greencard. No he has not applied for citizenship.

Sinerely, (sic) Sgd.District Director Form G-343 (Rev. 8-20-82)N

We vote to dismiss the instant prohibition case. First, this case is already moot and academic for it is evident from the manifestation filed by petitioners dated April 6, 1992[8] that they seek to unseat respondent from his position as Congressman for the duration of his term of office commencing June 30, 1987 and ending June 30, 1992. Secondly, jurisdiction of this case rightfully pertains to the House Electoral Tribunal. Under Section 17 of Article VI of the 1987 Constitution, it is the House Electoral Tribunal which shall be the sole judge of all contests relating to the election, returns and qualification of its members. Since petitioners challenge the qualifications of Congressman Daza, the appropriate remedy should have been to file a petition to cancel respondent Daza's certificate of candidacy before the election[9] or a quo warranto case with the House Electoral Tribunal within ten [10] days after Daza's proclamation.[10] Third, a writ of prohibition can no longer be issued against respondent since his term has already expired. A writ or prohibition is not intended to provide for acts already consummated.[11] Fourth, as a de facto public officer,[12] respondent cannot be made to reimburse funds disbursed during his term of office because his acts are as valid as those of a de jure officer. Moreover, as a de facto officer, he is entitled to emoluments for actual services rendered.[13]

ACCORDINGLY, the Court resolved to DISMISS the instant petition for being moot and academic.

SO ORDERED.

Narvasa, C.J., Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Nocon and Bellosillo, JJ., concur. Melo and Campos, Jr., JJ., took no part. Gutierrez, Jr., Cruz and Feliciano, JJ., are on leave.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-3913 August 7, 1952

EULOGIO RODRIGUEZ, SR., plaintiff-appellant, vs.CARLOS TAN, defendant-appellee.

Ramon Diokno and Jose W. Diokno for appellant.Agustin Alvarez Salazar for appellee.

BAUTISTA ANGELO, J.:

Plaintiff seeks to collect from the defendant the aggregate sum of P18,400 as salaries and allowances and the sum of P35,524.55 as damages, upon the plea that the latter usurped the office of Senator of the Philippines which rightfully belongs to the former from December 30, 1947, to December 27, 1949.

Plaintiff claims that on December 30, 1947, defendant usurped the office of Senator of the Philippines, and from that date until December 1949, he continously collected the salaries, emoluments and privileges attendant to that office amounting to P18,400; that protest having been filed by plaintiff against defendant, the Senate Electoral Tribunal on December 16, 1949, rendered judgment declaring plaintiff to have been duly elected to the office; and that by reason of such usurpation, plaintiff suffered damages in the amount of P35,524.55 for expenses he incurred in prosecuting the protest.

On February 2, 1950, defendant filed a motion to dismiss alleging, on one hand, that the judgment rendered by the Senate Electoral Tribunal in the protest case is a bar to this action under the principle of res judicata, and, on the other, that said Tribunal denied without any reservation the claim of the plaintiff for expenses incurred in prosecuting the protest.

The issue having been thus joined upon the motion to dismiss, the Court entered on an order dismissing the complaint with costs. From this order plaintiff has appealed.

Public Officers and Election Laws 86

The averment in the complaint that "defendant usurped the office of Senator of the Philippines" is a conclusion of law, — not a statement of fact, — inasmuch as the particular facts on which the alleged usurpation is predicated are not set forth therein. Hence such averment cannot be deemed admitted by the motion to dismiss (Fressel vs. Mariano Uy Chanco & Sons & Co., 34 Phil., 122). Moreover, such averment is negatived by the decision of the Senate Electoral Tribunal in the protest case which says that defendant was one of those proclaimed elected as Senator in the general elections held on November 11, 1947. Defendant, cannot, therefore, be considered a usurper as claimed in the complaint.

With this preliminary statement, let us now proceed to determine the only issue involved in this appeal, to wit, whether defendant, who has been proclaimed, took the oath of office, and discharged the duties of Senator, can be ordered to reimburse the salaries and emoluments he has received during his incumbency to the plaintiff who has been legally declared elected by the Senate Electoral Tribunal. .

Plaintiff claims that, as defendant was found and by final judgment not to have been entitled to the office of Senator, and, as such, he was during the time he discharged that office a mere de facto officer, he should reimbursed to the plaintiff the salaries and emoluments he has received on the following grounds; (1) because the salaries and emoluments follow and are inseparable from legal title to the office and do not depend on whether the duties of the office are discharged or not; and (2) because such a rule tends to curb election frauds and lessens the danger and frequency of usurpation or instrusion into the office. Plaintiffs invites the attention of the Court to the annotation appearing in 93 A.L.R. 258,273 et seq., supplemented in 151 A.L.R. 952, 960, et seq., wherein more than 100 cases are cited in support of the rule.

Defendant, on the other hand, contends that the rule invoked by plaintiff, while sound and plausible cannot be invoked in the present case, since it runs counter to the principle and rule long observed in this jurisdiction to the effect that one who has been elected to an office, and has been proclaimed by the corresponding authority, has a right to assume the office and discharge its functions notwithstanding the protest filed against his election, and as a necessary consequence he has likewise the right to collect and received the salaries and emoluments thereunto appertaining as a compensation for the salaries he has rendered. Defendants avers that plaintiff already attempted to seek the reimbursement of the salaries and emoluments he had received in the protest he has filed against him Senate Electoral Tribunal constitutes a bar to his right to collect the same salaries and emoluments in the present case.

After a careful consideration of the issue in the light of the law and precedents obtaining in this jurisdiction, we are inclined to uphold the point of view of the defendant. There is no question that the defendant acted as a de factoofficer during the time he held the office of Senator. He was one of the candidates of the Liberal Party in the elections of November 11, 1947, and was proclaimed as one of those who had been elected by the Commission on Elections, and thereafter he took the oath of office and immediately entered into the performance of the duties of the position. Having been thus duly proclaimed as Senator and having assumed office as required by law, it cannot be disputed that defendant is entitled to the compensation, emoluments and allowances which our Constitution provides for the position (article VI, section 14). This is as it should be. This is in keeping with the ordinary course of events. This is simple justice. The emolument must go to the person who rendered service unless the contrary is provided. There is no averment in the complaint that he is linked with any irregularity vitiating his election. This is the policy and the rule that has been followed consistently in this jurisdiction in connection with the provisions held by persons who had been elected thereto but were later ousted as a result of an election protest. The right of the persons elected to compensation during their incumbency has always been recognized. We cannot recall of any precedent wherein the contrary rule has been upheld.

A case which may be invoked in support of this point of view is Page vs. U.S. (127 U.S. 67; 32 Law ed. 65), decided by the Supreme Court of the United States. In that case, one William A. Pirce was declared elected, received a certificate of election, was sworn in and took his seat in the Congress of the United States. His election was contested by Charles H. Page, and as a result the House of Representatives found that Pirce was not duly elected his seat vacant. An election was thereafter held to fill the vacancy and Page was duly elected. Thereupon Page was sworn in and took his seat. Page later sued to recover the salary received by Price during his incumbency. The Supreme Court ruled that he was not entitled to it holding that "one whose credentials showed that he was regularly elected a member of Congress, and who was sworn in and took his seat, and served, and drew his salary, was — although his seat was contested, and subsequently he was declared by Congress not to have been elected, and this seat was declared vacant — the predecessor of the person elected to fill the vacancy". This case, thought it arose under a special statute, is significant in that it regarded Pirce as the lawful predecessor of Page in the office to which he was later legally elected. Pirce was declared entitled to the salary and emoluments of the office.

We are sympathetic to the rule earnestly advocated by the plaintiff which holds that the salaries and emoluments should follow the legal title to the office and should not depend and whether the duties of the office are discharged or not, knowing that it is predicated on a policy designed to discourage the Commission of frauds and to lessen the danger and frequency of usurpation or intrusion into the office which defeat the will of the people. We are conscious that, if the rule is adopted, it would indeed have a wholesome effect in future elections and would serve as a deterring factor in the commission of frauds, violence and terrorism which at the times are committed in some sectors of our country to the detriment of public interest. But an examination of the cases relied upon by him, discloses that in some states, like Indiana, New York, Michigan, California, Lousiana, Idaho, Missouri and Washington, the doctrine advocated is premised on express statutory by reason of usurpation, (Mechem, A Treatise on the Law of Public Offices and Officers, pp. 223-224; 93 A.L.R. pp. 284-287), whereas in the rest in the ruling is based on common law (Kreitz vs. Behrensmeyer, 24 A.L.R. 223-224). Under such predicament, it is indeed hard to see how we can extend here the force and effect of such doctrine as we are urged, knowing well that, as a rule, "neither the English nor the American common law as in force in these Islands upon our courts" (U.S. vs. Cuna, 12 Phil., 241; Arnedo vs. Llorente and Liongson, 18 Phil., 257, 262) while, on the other hand, there is nothing in our status which would authorize us to adopt the rule. For us to follow the suggestion of the plaintiff would be legislate by judicial ruling which is beyond the province of the Court. Nor are we justified to follow a common law principle which runs counter to a precedent long observed in this jurisdiction.

Another reason that may be involved in opposition to the claim of the plaintiff is the principle of res judicata. It appears that plaintiff had already set up this claim in the protest he filed against the defendant before the Senate Electoral Tribunal, but when the case was decided on the merits the Tribunal passed up this matter sub silentio. In our opinion, this silence may be interpreted as a denial of the relief. This is a matter which can be considered as an incident to the power and authority given to the Electoral Tribunal by our Constitution, whose jurisdiction over election cases is ample and unlimited (Sanidad et al. vs. Vera et al., Case No. 1, Senate Electoral Tribunal), and when the Tribunal chose to pass sub silentio, or ignore altogether, this important claim, the clear implication is that it deemed it unjustified. This

Public Officers and Election Laws 87

matter, therefore, cannot now be passed upon in line with the doctrine laid down in the case of Kare vs. Locsin, (61 Phil., 541), wherein the Court, among other things, said;

Locsin drew his pay by resolution and authority of the Legislature. The propriety of those payments cannot be questioned on this complaint. We recognize Locsin's rigth to receive and to retain the compensation because the Legislature voted it to him in spite of Mr. Kare's pending contest and claim to that compensation. The legislature's carries the corollary of Mr. Kare's lack of right to the same compensation. The Legislature might possibly have required reimbursement by Locsin had it been its intention to recognize Mr. Kare's claim to the same compensation; but not having done so, Locsin's superior right to this compensation is res judicata for the courts. (Kare vs. Locsin, 61 Phil., pp. 541, 546.)

The same consideration may be made with regard to the claim for damages contained in the second cause of action of the complaint.

Wherefore, the order appealed from is affirmed, with costs against the appellant.

Bengzon, Montemayor, and Labrador, JJ., concur.Paras, C.J., concurs in the result.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 120193 March 6, 1996

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

HERMOSISIMA, JR., J.:p

Novel is the situation created by the decision of the Commission on Elections which declared the winner in an election contest and awarded damages, consisting of attorney's fees, actual expenses for xerox copies, unearned salary and other emoluments for the period, from March, 1994 to April, 1995, en masse denominated as actual damages, notwithstanding the fact that the electoral controversy had become moot and academic on account of the expiration of the term of office of the Municipal Mayor of Kidapawan, North Cotabato.

Before us is a petition for certiorari and prohibition, with a prayer for the issuance of a temporary restraining order and writ of preliminary injunction, seeking the review of the decision en banc 1 of the Commission of Elections (COMELEC) denying the motion for reconsideration of the decision 2 of its First Division, 3 which reversed the decision 4 of the Regional Trial Court 5 in the election case 6 involving the herein parties. While the Regional Trial Court had found petitioner Luis Malaluan to be the winner of the elections for the position of Municipal Mayor of Kidapawan, North Cotabato, the COMELEC, on the contrary, found private respondent Joseph Evangelista to be the rightful winner in said elections.

Petitioner Luis Malaluan and private respondent Joseph Evangelista were both mayoralty candidates in the Municipality of Kidapawan, North Cotabato, in the Synchronized National and Local Elections held on May 11, 1992. Private respondent Joseph Evangelista was proclaimed by the Municipal Board of Canvassers as the duly elected Mayor for having garnered 10,498 votes as against petitioner's 9,792 votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on May 22, 1992, petitioner filed an election protest with the Regional Trial Court contesting 64 out of the total 181 precincts of the said municipality. The trial court declared petitioner as the duly elected municipal mayor of Kidapawan, North Cotabato with a plurality of 154 votes. Acting without precedent, the court found private respondent liable not only for Malaluan's protest expenses but also for moral and exemplary damages and attorney's fees. On February 3, 1994, private respondent appealed the trial court decision to the COMELEC.

Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for execution pending appeal. The motion was granted by the trial court, in an order, dated March 8, 1994, after petitioner posted a bond in the amount of P500,000.00. By virtue of said order, petitioner assumed the office of Municipal Mayor of Kidapawan, North Cotabato, and exercised the powers and functions of said office. Such exercise was not for long, though. In the herein assailed decision adverse to Malaluan's continued governance of the Municipality of Kidapawan, North Cotabato, the First Division of the Commission on Elections (COMELEC) ordered Malaluan to vacate the office, said division having found and so declared private respondent to be the duly elected Municipal Mayor of said municipality. The COMELEC en banc affirmed said decision.

Public Officers and Election Laws 88

Malaluan filed this petition before us on May 31, 1995 as a consequence.

It is significant to note that the term of office of the local officials elected in the May, 1992 elections expired on June 30, 1995. This petition, thus, has become moot and academic insofar as it concerns petitioner's right to the mayoralty seat in his municipality 7 because expiration of the term of office contested in the election protest has the effect of rendering the same moot and academic. 8

When the appeal from a decision in an election case has already become moot, the case being an election protest involving the office of mayor the term of which had expired, the appeal is dismissible on that ground, unless the rendering of a decision on the merits would be of practical value. 9 This rule we established in the case of Yorac vs. Magalona 10 which we dismissed because it had been mooted by the expiration of the term of office of the Municipal Mayor of Saravia, Negros Occidental. This was the object of contention between the parties therein. The recent case of Atienza vs. Commission on Elections, 11 however, squarely presented the situation that is the exception to that rule.

Comparing the scenarios in those two cases, we explained:

Second, petitioner's citation of Yorac vs. Magalona as authority for his main proposition is grossly inappropriate and misses the point in issue. The sole question in that case centered on an election protest involving the mayoralty post in Saravia, Negros Occidental in the general elections of 1955, which was rendered moot and academic by the expiration of the term of office in December, 1959. It did not involve a monetary award for damages and other expenses incurred as a result of the election protest. In response to the petitioner's contention that the issues presented before the court were novel and important and that the appeal should not be dismissed, the Court held — citing the same provision of the Rules of Court upon which petitioner staunchly places reliance — that a decision on the merits in the case would have no practical value at all, and forthwith dismissed the case for being moot. That is not the case here. In contradistinction to Yorac, a decision on the merits in the case at bench would clearly have the practical value of either sustaining the monetary award for damages or relieving the private respondent from having to pay the amount thus awarded. 12

Indeed, this petition appears now to be moot and academic because the herein parties are contesting an elective post to which their right to the office no longer exists. However, the question as to damages remains ripe for adjudication. The COMELEC found petitioner liable for attorney's fees, actual expenses for xerox copies, and unearned salary and other emoluments from March, 1994 to April, 1995, en masse denominated as actual damages, default in payment by petitioner of which shall result in the collection of said amount from the bond posted by petitioner on the occasion of the grant of his motion for execution pending appeal in the trial court. Petitioner naturally contests the propriety and legality of this award upon private respondent on the ground that said damages have not been alleged and proved during trial.

What looms large as the issue in this case is whether or not the COMELEC gravely abused its discretion in awarding the aforecited damages in favor of private respondent.

The Omnibus Election Code provides that "actual or compensatory damages may be granted in all election contests or in quo warranto proceedings in accordance with law." 13 COMELEC Rules of Procedure provide that "in all election contests the Court may adjudicate damages and attorney's fees as it may deem just and as established by the evidence if the aggrieved party has included such claims in his pleadings." 14 This appears to require only that the judicial award of damages be just and that the same be borne out by the pleadings and evidence The overriding requirement for a valid and proper award of damages, it must be remembered, is that the same is in accordance with law, specifically, the provisions of the Civil Code pertinent to damages.

Article 2199 of the Civil Code mandates that "except as provided by law or by stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved. Such compensation is referred to as actual or compensatory damages." The Civil Code further prescribes the proper setting for allowance of actual or compensatory damages in the following provisions:

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obliger shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation.

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant.

Considering that actual or compensatory damages are appropriate only in breaches of obligations in cases of contracts and quasi-contracts and on the occasion of crimes and quasi-delicts where the defendant may be held liable for all damages the proximate cause of which is the act or omission complained of, the monetary claim of a party in an election case must necessarily be hinged on either a contract or a quasi-contract or a tortious act or omission or a crime, in order to effectively recover actual or compensatory damages. 15 In the absence of any or all of these, "the claimant must be able to point out a specific provision of law authorizing a money claim for election protest expenses against the losing party" 16. For instance, the claimant may cite any of the following provisions of the Civil Code under the chapter on human relations, which provisions create obligations not by contract, crime or negligence, but directly by law:

Art. 19. Every person must in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.

Public Officers and Election Laws 89

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

xxx xxx xxx

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

xxx xxx xxx

(5) Freedom of suffrage;

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. . . . 17

Claimed as part of the damages to which private respondent is allegedly entitled to, is P169,456.00 constituting salary and other emoluments from March, 1994 to April, 1995 that would have accrued to him had there not been an execution of the trial court's decision pending appeal therefrom in the COMELEC.

The long-standing rule in this jurisdiction is that notwithstanding his subsequent ouster as a result of an election protest, an elective official who has been proclaimed by the COMELEC as winner in an electoral contest and who assumed office and entered into the performance of the duties of that office, is entitled to the compensation, emoluments and allowances legally provided for the position. 18 We ratiocinated in the case of Rodriguez vs. Tanthat:

This is as it should be. This is in keeping with the ordinary course of events. This is simple justice. The emolument must go to the person who rendered the service unless the contrary is provided. There is no averment in the complaint that he is linked with any irregularity vitiating his election. This is the policy and the rule that has been followed consistently in this jurisdiction in connection with positions held by persons who had been elected thereto but were later ousted as a result of an election protest. The right of the persons elected to compensation during their incumbency has always been recognized. We cannot recall of any precedent wherein the contrary rule has been upheld. 19

In his concurring opinion in the same case, however, Justice Padilla equally stressed that, while the general rule is that the ousted elective official is not obliged to reimburse the emoluments of office that he had received before his ouster, he would be liable for damages in case he would be found responsible for any unlawful or tortious acts in relation to his proclamation. We quote the pertinent portion of that opinion for emphasis:

Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious acts which led to and resulted in his proclamation as senator-elect, when in truth and in fact he was not so elected, he would be answerable for damages. In that event the salary, fees and emoluments received by or paid to him during his illegal incumbency would be a proper item of recoverable damage. 20

The criterion for a justifiable award of election protest expenses and salaries and emoluments, thus, remains to be the existence of a pertinent breach of obligations arising from contracts or quasi-contracts, tortious acts, crimes or a specific legal provision authorizing the money claim in the context of election cases. Absent any of these, we could not even begin to contemplate liability for damages in election cases, except insofar as attorney's fees are concerned, since the Civil Code enumerates the specific instances when the same may be awarded by the court.

Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except:

(1) When exemplary damages are awarded;

(2) When the defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest;

(3) In criminal cases of malicious prosecution against the plaintiff;

(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;

(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the plaintiffs plainly valid, just and demandable claim;

(6) In actions for legal support;

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;

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(8) In actions for indemnity under workmen's compensation and employer's liability laws;

(9) In a separate civil action to recover civil liability arising from a crime;

(10) When at least double judicial costs are awarded;

(11) In any other case where the court deems it just and equitable that attorney's fees and expenses of litigation should be recovered. 21

Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into the basis of respondent COMELEC for awarding actual damages to private respondent in the form of reimbursement for attorney's fees, actual expenses for xerox copies, and salary and other emoluments that should have accrued to him from March, 1994 to April, 1995 had the RTC not issued an order for execution pending appeal.

The First Division of the COMELEC ruled on private respondent's claim for actual or compensatory damages in this wise:

. . . under the present legal setting, it is more difficult than in the past to secure an award of actual or compensatory damages either against the protestant or the protestee because of the requirerments of the law.

In the instant case, however, We are disposed to conclude that the election protest filed by the protestant is clearly unfounded. As borne out by the results of the appreciation of ballots conducted by this Commission, apparently the protest was filed in bad faith without sufficient cause or has been filed for the sole purpose of molesting the protestee-appellant for which he incurred expenses. The erroneous ruling of the Court which invalidated ballots which were clearly valid added more injury to the protestee-appellant. This would have been bearable since he was able to perfect his appeal to this Commission. The final blow, however, came when the Court ordered the execution of judgment pending appeal which, from all indications, did not comply with the requirements of Section 2, Rule 39 of the Rules of Court. There was no good and special reason at all to justify the execution of judgment pending appeal because the protestee's winning margin was 149 votes while that of the protestant — after the Court declared him a winner — was only a margin of 154 votes. Clearly, the order of execution of judgment pending appeal was issued with grave abuse of discretion.

For these reasons, protestee-appellant seeks to recover the following:

1. Actual damages representing attorney's fees for the new counsel who handled the Appeal and the Petition for Certiorari before the Court of Appeals . . . P372,500.00

2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at P1.50 . . . P11,235.00

3. Actual expenses for xerox copying of ballots . . . P3,919.20

4. Actual damages for loss of salary and other emoluments since March 1994 as per attached Certification issued by the Municipal Account of Kidapawan . . . P96,832.00 (up to October 1994 only)

Under Article 2208 of the New Civil Code attorney's fees and expenses of litigation can be recovered (as actual damages) in the case of clearly unfounded civil action or proceeding. And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed recovery of salaries and allowances (as damages) from elected officials who were later ousted, under the theory that persons elected has (sic) a right to compensation during their incumbency, the instant case is different. The protestee-appellant was the one elected. He was ousted not by final judgment bur by an order of execution pending appeal which was groundless and issued with grave abuse of discretion. Protestant-appellee occupied the position in an illegal manner as a usurper and, not having been elected to the office, but merely installed through a baseless court order, he certainly had no right to the salaries and emoluments of the office.

Actual damages in the form of reimbursement for attorney's fees (P372,500.00), actual expenses for xerox copies (P15,154.00), unearned salary and other emoluments from March 1994 to April 1995 or 14 months at P12,104.00 a month (P169,456.00), totalled P557,110.00. To (sic) this amount, however, P300,000.00 representing that portion of attorney's fees denominated as success fee' must be deducted this being premised on a contingent event the happening of which was uncertain from the beginning. Moral damages and exemplary damages claimed are, of course, disallowed not falling within the purview of Section 259 of the Omnibus Election Code.

It goes without saying that if the protestant-appellee fails to pay the actual damages of P257,110.00, the amount will be assessed, levied and collected from the bond of P500,000.00 which he put up before the Court asa condition for the issuance of the order of execution of judgment pending appeal. 22

Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995. The COMELEC en banc, however, did not find any new matter substantial in nature, persuasive in character or sufficiently provocative to compel reconsideration of said decision and accordingly affirmed in toto the said decision. Hence, this petition raises, among others, the issue now solely remaining and in need of final adjudication in view of the mootness of the other issues anent petitioner's right to the contested office the term for which has already expired.

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We have painstakingly gone over the records of this case and we can attribute to petitioner no breach of contract or quasi-contract; or tortious act nor crime that may make him liable for actual damages. Neither has private respondent been "able to point out to a specific provision of law authorizing a money claim for election protest expenses against the losing party." 23

We find respondent COMELEC's reasoning in awarding the damages in question to be fatally flawed. The COMELEC found the election protest filed by the petitioner to be clearly unfounded because its own appreciation of the contested ballots yielded results contrary to those of the trial court. Assuming, ex gratia argumentis, that this is a reasonable observation not without basis, it is nonetheless fallacious to conclude a malicious intention on the part of petitioner to molest private respondent on the basis of what respondent COMELEC perceived as an erroneous ruling of the trial court. In other words, the actuations of the trial court, after the filing of a case before it, are its own, and any alleged error on its part does not, in the absence of clear proof, make the suit "clearly unfounded" for which the complainant ought to be penalized. Insofar as the award of protest expenses and attorney's fees are concerned, therefore we find them to have been awarded by respondent COMELEC without basis, the election protest not having been a clearly unfounded one under the aforementioned circumstances.

Respondent COMELEC also found the order granting execution of judgment pending appeal to be defective because of alleged non-compliance with the requirement that there be a good and special reason 24 to justify execution pending appeal. We, however, find that the trial court acted judiciously in the exercise of its prerogatives under the law in issuing the order granting execution pending appeal. First, it should be noted that the applicability of the provisions of the Rules of Court, relating to execution pending appeal, has ceased to be debatable after we definitively ruled in Garcia vs. de Jesus 25 that "Section 2, Rule 39 of the Rules of Court, which allows Regional Trial Courts to order executions pending appeal upon good reasons stated in a special order, may be made to apply by analogy or suppletorily to election contests decided by them." 26 It is not disputed that petitioner filed a bond in the amount of P500,000.00 as required under the Rules of Court.

It is also now a settled rule that "as much recognition should be given to the value of the decision of a judicial body as a basis for the right to assume office as that given by law to the proclamation made by the Board of Canvassers." 27

. . . Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed . . . the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield extraneous considerations . . . the board must act summarily, practically raising (sic) against time, while, on the other hand, the judge has the benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious study and mature deliberation before rendering judgment . . . .28

Without evaluating the merits of the trial court's actual appreciation of the ballots contested in the election protest, we note on the face of its decision that the trial court relied on the findings of the National Bureau of Investigation (NBI) handwriting experts which findings private respondent did not even bother to rebut. We thus see no reason to disregard the presumption of regularity in the performance of official duty on the part of the trial court judge. Capping this combination of circumstances which impel the grant of immediate execution is the undeniable urgency involved in the political situation in the Municipality of Kidapawan, North Cotabato. The appeal before the COMELEC would undoubtedly cause the political vacuum in said municipality to persist, and so the trial court reasonably perceived execution pending appeal to be warranted and justified. Anyway, the bond posted by petitioner could cover any damages suffered by any aggrieved party. It is true that mere posting of a bond is not enough reason to justify execution pending appeal, but the nexus of circumstances aforechronicled considered together and in relation to one another, is the dominant consideration for the execution pending appeal. 29

Finally, we deem the award of salaries and other emoluments to be improper and lacking legal sanction. Respondent COMELEC ruled that inapplicable in the instant case is the ruling in Rodriguez vs. Tan 30 because while in that case the official ousted was the one proclaimed by the COMELEC, in the instant case, petitioner was proclaimed winner only by the trial court and assumed office by virtue of an order granting execution pending appeal. Again, respondent COMELEC sweepingly concluded, in justifying the award of damages, that since petitioner was adjudged the winner in the elections only by the trial court and assumed the functions of the office on the strength merely of an order granting execution pending appeal, the petitioner occupied the position in an illegal manner as a usurper.

We hold that petitioner was not a usurper because, while a usurper is one who undertakes to act officially without any color of right, 31 the petitioner exercised the duties of an elective office under color of election thereto. 32 It matters not that it was the trial court and not the COMELEC that declared petitioner as the winner, because both, at different stages of the electoral process, have the power to so proclaim winners in electoral contests. At the risk of sounding repetitive, if only to emphasize this point, we must reiterate that the decision of a judicial body is no less a basis than the proclamation made by the COMELEC-convened Board of Canvassers for a winning candidate's right to assume office, for both are undisputedly legally sanctioned. We deem petitioner, therefore, to be a "de facto officer who, in good faith, has had possession of the office and had discharged the duties pertaining thereto" 33 and is thus "legally entitled to the emoluments of the office." 34

To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in election cases of actual and compensatory damages in accordance with law. The victorious party in an election case cannot be indemnified for expenses which he has incurred in an electoral contest in the absence of a wrongful act or omission or breach of obligation clearly attributable to the losing party. Evidently, if any damage had been suffered by private respondent due to the execution of judgment pending appeal, that damage may be said to be equivalent to damnum absque injuria, which is, damage without injury, or damage or injury inflicted without injustice, or loss or damage without violation of a legal right, or a wrong done to a man for which the law provides no remedy. 35

WHEREFORE, the petition for certiorari is GRANTED. While we uphold the COMELEC decision dated May 5, 1995 that private respondent Joseph Evangelista is the winner in the election for mayor of the Municipality of Kidapawan, North Cotabato, that portion of the decision is deemed moot and academic because the term of office for mayor has long expired. That portion of the decision awarding actual

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damages to private respondent Joseph Evangelista is hereby declared null and void for having been issued in grave abuse of discretion and in excess of jurisdiction.

SO ORDERED.

Narvasa, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco and Panganiban, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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.

Pedro Q. Quadra for petitioner.

Adnan V. Alonto for respondent Ahmad E. Alonto, Jr.

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:

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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. (Piñero 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:

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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 theinformation 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. Anad 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:

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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.

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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. Cariño 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.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 104639 July 14, 1995

PROVINCE OF CAMARINES SUR through its GOVERNOR, SANGGUNIANG PANLALAWIGAN and PROVINCIAL TREASURER, petitioner, vs.COURT OF APPEALS and TITO B. DATO, respondent.

KAPUNAN, J.:

Petitioner Province of Camarines Sur assails the decision of the Court of Appeals which affirmed with modification the Regional Trial Court of Camarines Sur's decision ordering it to pay private respondent Tito Dato backwages and attorney's fees.

The relevant antecedents are as follows:

On January 1, 1960, private respondent Tito Dato was appointed as Private Agent by the then governor of Camarines Sur, Apolonio Maleniza.

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On October 12, 1972, he was promoted and was appointed Assistant Provincial warden by then Governor Felix Alfelor, Sr. Because he had no civil service eligibility for the position he was appointed to, private respondent Tito Dato could not be legally extended a permanent appointment. Hence, what was extended to him was only a temporary appointment. Thereafter, the temporary appointment was renewed annually.

On January 1, 1974, Governor Alfelor approved the change in Dato's employment status from temporary to permanent upon the latter's representation that he passed the civil service examination for supervising security guards. Said change of status however, was not favorably acted upon by the Civil Service Commission (CSC) reasoning that Tito Dato did not possess the necessary civil service eligibility for the office he was appointed to. His appointment therefore remained temporary.

Thereafter, no other appointment was extended to him.

On March 16, 1976, private respondent Tito Dato was indefinitely suspended by Governor Alfelor after criminal charges were filed against him and a prison guard for allegedly conniving and/or consenting to evasion of sentence of some detention prisoners who escaped from confinement.

On March 19, 1976, or two years after the request for change of status was made, Mr. Lope B. Rama, head of the Camarines Sur Unit of the Civil Service Commission, wrote the Governor of Camarines Sur a letter informing him that the status of private respondent Tito Dato has been changed from temporary to permanent, the latter having passed the examination for Supervising Security Guard. The change of status was to be made retroactive to June 11, 1974, the date of release of said examination.

In the meantime, the Sangguniang Panlalawigan, suppressed the appropriation for the position of Assistant Provincial Warden and deleted private respondent's name from the petitioner's plantilla.

Private respondent Tito Dato was subsequently acquitted of the charges against him. Consequently, he requested the Governor for reinstatement and backwages.

When his request for reinstatement and backwages was not heeded, private respondent Tito Dato filed an action for mandamus before the Regional Trial Court of Pili, Camarines Sur, Branch 31.

On May 31, 1991, the trial court 1 rendered judgment, the decretal portion of which reads:

WHEREFORE, judgment is hereby rendered, ordering the respondents:

1) to appropriate and pay the back salaries of the petitioner Tito B. Dato equivalent to five (5) years without qualification or deduction, at the rate of P14,532.00 per annum, with all the rights and privileges that he is entitled to as a regular government employee reaching the age of 65 in the government service, as provided by law;

2) to pay the petitioner the sum of P5,000.00 as attorney's fees; and

3) to pay the costs.

SO ORDERED. 2

In due course, petitioner Province of Camarines Sur appealed the said decision to the Court of Appeals.

On February 20, 1992, respondent Court of Appeals rendered its decision which dispositively reads as follows:

WHEREFORE, in view of all the foregoing, judgment appealed from is hereby AFFIRMED with the following modifications: (1) respondents are ordered to pay the backwages of petitioner Tito B. Dato during the entire period of his suspension, with all the rights and privileges that he is entitled to as a regular government employee reaching the age of 65 in the government service, as provided by law; and (2) the award of the sum of P5,000 to petitioner as attorney's fees and respondents to pay the costs of suit is deleted.

IT IS SO ORDERED. 3

Aggrieved by the foregoing ruling, petitioner Province of Camarines Sur interposed the present petition submitting that the respondent court erred in (a) affirming the trial court's finding that private respondent Tito Dato was its permanent employee at the time he was suspended on March 16, 1976; and (b) modifying the said decision so as to allow private respondent to claim backwages for the entire period of his suspension.

The primary question to be resolved in the instant case is whether or not private respondent Tito Dato was a permanent employee of petitioner Province of Camarines Sur at the time he was suspended on March 16, 1976.

Petitioner contends that when Governor Alfelor recommended to CSC the change in the employment status of private respondent from temporary to permanent, which the CSC approved as only temporary pending validation of the results of private respondent's examination for supervising security guard, private respondent's appointment in effect remained temporary. Hence, his subsequent qualification for civil service eligibility did not ipso factoconvert his temporary status to that of permanent.

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Private respondent, on his part, vigorously asseverates that the respondent court committed no error in confirming his appointment as permanent.

We agree with the petitioner.

Private respondent does not dispute the fact that at the time he was appointed Assistant Provincial Warden on January 1, 1974, he had not yet qualified in an appropriate examination for the aforementioned position. Such lack of a civil service eligibility made his appointment temporary 4 and without a fixed and definite term and is dependent entirely upon the pleasure of the appointing power. 5 The fact that private respondent obtained civil service eligibility later on is of no moment as his having passed the supervising security guard examination, did notipso facto convert his temporary appointment into a permanent one. 6 In cases such as the one at bench, what is required is a new appointment since a permanent appointment is not a continuation of the temporary appointment — these are two distinct acts of the appointing authority. 7

It is worthy to note that private respondent rests his case entirely on the letter dated March 19, 1976 communicated by Mr. Lope Rama to the Governor of Camarines Sur. The letter, which is self-explanatory, is reproduced in full below:

XXXXXXXXXXXXCAMARINES SUR UNIT

Naga City

Re: DATO, Tito— Appointment of

March 19, 1976

The HonorableThe Provincial Governor of Camarines SurNaga City.

S i r :

This refers to the latest approved appointment of Mr. TITO DATO as Asst. Provincial Warden, this province, at P3600, effective January 1, 1974 which was approved by this Office as temporary pending validation of his Supervising Security Guard eligibility.

It appears, however, that the aforementioned eligibility of Mr. Dato was released on June 11, 1974. In this connection, attention is being invited to Sec. 19, Rule III of the Rules on Personnel Action and Policies which provides that "Eligibility resulting from civil service examination . . . shall be effective on the date on the release of the results of the examination. . . ." (Emphasis supplied.) Mr. Dato's Supervising Security Guard eligibility, therefore, takes effect June 11, 1974, the date the results thereof was released.

In view thereof, the aforementioned appointment of Mr. Dato is hereby approved anew as follows: "APPROVED as temporary under Sec. 24 (c), R.A. 2260, as amended, effective January 1, 1974 up to June 10, 1974 and as permanent under Sec. 24 (b), R.A. 2260, as amended, subject to the report on his physical and medical examination as to insurability, effective June 11, 1974. The Supervising Security Guard eligibility of Mr. Dato has been validated by the Civil Service Commission, Quezon City.

The records of Mr. Dato in this Office have been amended accordingly.

Very truly yours,

By authority of the Commission.

(Initialed)LOPE B. RAMA

Unit Head 8

The foregoing is a clear arrogation of power properly belonging to the appointing authority. Time and again, the Court has defined the parameters within which the power of approval of appointments shall be exercised by the Civil Service Commission. In Luego v. Civil Service Commission, 9 the Court ruled that CSC has the power toapprove or disapprove an appointment set before it. It does not have the power to make the appointment itself or to direct the appointing authority to change the employment status of an employee. The CSC can only inquire into the eligibility of the person chosen to fill a position and if it finds the person qualified it must so attest. If not, the appointment must be disapproved. The duty of the CSC is to attest appointments 10 and after that function is discharged, its participation in the appointment process ceases. 11 In the case at bench, CSC should have ended its participation in the appointment of private respondent on January 1, 1974 when it confirmed the temporarystatus of the latter who lacked the proper civil service eligibility. When it issued the foregoing communication on March 19, 1976, it stepped on the toes of the appointing authority, thereby encroaching on the discretion vested solely upon the latter.

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Moreover, the Court is not prepared to accord said letter 12 any probative value, the same being merely a purported photocopy of the alleged letter, initialed and not even signed by the proper officer of the CSC.

Based on the foregoing, private respondent Tito Dato, being merely a temporary employee, is not entitled to the relief he seeks, including his claim for backwages for the entire period of his suspension.

WHEREFORE, premises considered, the appealed decision is hereby REVERSED and the petition for mandamusinstituted by herein private respondent Tito Dato is hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Mendoza and Francisco, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 93023 March 13, 1991

TOMAS D. ACHACOSO, petitionervs.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.

Padilla, Jimenez, Kintanar and Asuncion Law Office for petitioner.

CRUZ, J:p

The petitioner invokes security of tenure against his claimed removal without legal cause. The respondents assert he is not entitled 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. 1Claiming 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 invokesOrtiz vs. Commission on Elections, 2 where we observed that "to constitute a complete

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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. JURIDICOExecutive 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

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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.

Fernan, C.J., Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Bidin, Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

Narvasa and Padilla, JJ., took no part.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 104226 August 12, 1993

CONCHITA ROMUALDEZ-YAP, petitioner, vs.THE CIVIL SERVICE COMMISSION and THE PHILIPPINE NATIONAL BANK, respondents.

Estelito P. Mendoza for petitioner.

The Solicitor General for the Civil Service Commission.

Domingo A. Santiago, Jr. for Philippine National Bank.

PADILLA, J.:

This is a special civil action for certiorari under Rule 65 of the Rules of Court, assailing Resolution No. 92-201 of the respondent Civil Service Commission, which upheld the petitioner's separation from the Philippine National Bank(PNB) as a result of the abolition of the Fund Transfer Department pursuant to a reorganization under Executive Order No. 80, dated 3 December 1986.

Petitioner Conchita Romualdez-Yap started working with the Philippine National Bank on 20 September 1972 as special assistant with the rank of Second Assistant Manager assigned to the office of the PNB President. After several promotions, she was appointed in 1983 Senior Vice President assigned to the Fund Transfer Department.

Starting 1 April 1986 up to 20 February 1987, petitioner filed several applications for leave of absence (due to medical reasons) which were duly approved. While she was on leave, Executive Order No. 80 (Revised Charter of the PNB) was approved on 3 December 1986. Said executive order authorized the restructure/reorganization and rehabilitation of PNB. Pursuant to the reorganization plan, the Fund Transfer Department was abolished and its functions transferred to the International Department.

Consequently, petitioner was notified of her separation from the service in a letter dated 30 January 1987, thus:

Public Officers and Election Laws 101

Pursuant to the Transitory Provision of the 1986 Revised Charter of the Bank, please be informed that Management has approved your separation from the service effective February 16, 1986. You shall be entitled to the regular benefits allowed under existing law. (emphasis supplied)

Please be informed further that under Sec. 37 of the Bank's 1986 Revised Charter, any officer or employee who feels aggrieved by any matter treated above may submit his case to the Civil Service Commission. 1

This letter was received by petitioner's secretary at the PNB head office on 16 February 1987.

Petitioner's first recorded appeal to the Civil Service Commission questioning her separation is a letter dated 4 August 1989. Then CSC Chairman Samilo N. Barlongay upheld the validity of her separation from the service in a letter/opinion dated 30 August 1989 (this was allegedly received by petitioner only on 26 February 1990) stating thus:

xxx xxx xxx

It may be mentioned in this connection, that inasmuch as you did not avail of the ERIP/Supplementary Retirement Plans adopted by the PNB in 1986, you have therefore lost your right thereto. Moreover, since you lack the required number of years of service to entitle you to retirement benefits under existing laws, you may be entitled to the return of your GSIS personal contributions. Considering further that you have exhausted all your accumulated leave credits as you went on leave of absence for the period from April 1, 1986 to February 20, 1987, there is no legal or valid basis to entitle you to payment of terminal leave.

Finally, pursuant to Section 16, Article XVIII of the Transitory Provisions of the 1987 Philippine Constitution, you may be entitled to payment of separation subject to auditing rules and regulations. 2

In her motion for reconsideration with the Civil Service Commission, dated 5 March 1990, questioning Chairman Barlongay's ruling, petitioner claimed:

1. The opinion/ruling was not fully supported by the evidence on record;

2. Errors of law prejudicial to the interest of the movant have been committed. She argued:

. . . that her separation from the service was illegal and was done in bad faith considering that her termination on February 16, 1986 was made effective prior to the effectivity of Executive Order No. 80 on December 3, 1986, which law authorized the reorganization of the PNB, and even before February 25, 1986, when President Corazon C. Aquino came into power. She further claims that although the notice of termination was dated January 30, 1987 it was only served upon her on February 16, 1987 when the new Constitution which guarantees security of tenure to public employees was already in effect. 3

xxx xxx xxx

. . . the bad faith in her separation from the service in 1987 was evident from the recent restoration of the Fund Transfer Department as a separate and distinct unit from the International Department . . . 4

Denying the motion for reconsideration, the Civil Service Commission in its aforecited Resolution No. 92-201, dated 30 January, 1992, ruled:

Sec. 33 of EO 80 (1986 Revised Charter of the PNB) provides:

Sec. 33. Authority to Reorganize. — In view of reduced operations contemplated under this charter in pursuance of the national policy expressed in the "Whereas" clause hereof, a reorganization of the Bank and a reduction in force are hereby authorized to achieve greater efficiency and economy in operations, including the adoption of a new staffing pattern to suit the reduced operations envisioned. The program of reorganization shall begin immediately after the approval of this Order, and shall be completed within six (6) months and shall be fully implemented within eighteen (18) months thereafter." Clearly; as aforequoted, PNB was authorized to undergo reorganization and to effect a reduction in force to "achieve greater efficiency and economy in operations". It cannot, be disputed that reduction in force necessitates, among others, the abolition of positions/offices. The records show that prior to its reorganization, PNB originally had 7,537 positions which were reduced to 5,405 after the reorganization. Indeed, 2,132 positions were abolished, that is, the original positions in PNB were reduced by 28%. This reduction in force likewise included the senior officer positions, in PNB, which were reduced, thus:

Positions Incumbents Proposed Position

President 1 1 1Sr. Exec. VP 1 1 0Exec. VP 3 2 2Senior VP 12 11 7Vice Pres. 33 27 15

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The position of movant Yap (SVP) was one among the original twelve (12) SVP positions. It was one among the five (5) SVP positions which were abolished. In fact, the FTD of which she was then the incumbent SVP, was merged with the International Department to which its functions were closedly related.

It should be noted that as ruled by the Supreme Court in Dario vs. Mison (G.R. NO. 81954):

Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese Wall. . . . .

. . . Good faith, as a component of a reorganization under a constitutional regime is judged from the facts of each case.

In the instant case, therefore, this Commission is inclined to believe that the reorganization of PNB was done in good faith. For indeed, the reorganization was pursued to achieve economy. It undertook reduction in force as a means to streamline the numbers of the workforce. It was incidental that movant Yap's position was one among those abolished. Movant Yap failed to substantiate her claim by clear and convincing evidence that the abolition of her position was a result of her close identification with the previous regime, being a sister of former First Lady Imelda Romualdez Marcos. This being so, and pursuant to the presumption of regularity in the performance of official functions, the abolition of movant Yap's position should be upheld. PNB, in the instant case, has clearly proved by substantial evidence that its act in terminating the services of some of its employees was done in good faith. 5

Overruling her imputation of bad faith, i.e. her separation was illegal because it took effect on 16 February 1986 or even before the promulgation of EO No. 80 on 3 December 1986, the CSC noted that the year "1986" stated in the notice of her separation from the service was a typographical error. PNB submitted documents (p. 6 of Resolution No. 92-201) supporting its stand that the separation actually took effect on 16 February 1987.

On the issue of bad faith as related to the later restoration of the Fund Transfer Department, the subject CSC resolution adds:

xxx xxx xxx

It may be mentioned that the recent restoration of the Fund Transfer Department, actually was a merger of the Fund Transfer Group, the Foreign Remittance Development and Coordinating Unit based on board Resolution No. 60 of March 12, 1991, or after the lapse of over four (4) years from the date it was abolished in 1987. Moreover, the restoration of the Fund Transfer Department and other offices in the PNB was primarily caused by the improved financial capability and present needs of the Bank. This improved financial condition of the PNB is evident from the 1990 Annual Report it submitted. It may be further stated that the re-established FTD is headed by a Vice President, a position much lower in rank than the former department headed by a Senior Vice President.

Furthermore, it should be noted that granting arguendo that movant Yap's termination from the service was tainted with bad faith, she however, is now barred from assailing the same as she did not seasonably assert her right thereto. Records show that she was separated from PNB on February 16, 1987 and it was only in 1989 or about 2 years thereafter when she brought this matter to this Commission. By her inaction in questioning her termination within a period of one year, she is considered to have acquiesced to her separation from the service and abandoned her right to the position. 6

In the present petition before the Court, the following issues are raised:

1. Existence of bad faith in the reorganization of the Philippine National Bank resulting in the separation from the service of petitioner.

2. Erroneous application of the Dario v. Mison doctrine vis-a-vis PNB's reorganization.

3. Erroneous application of the one (1) year prescriptive period for quo warranto proceedings in petitioner's case.

Dario v. Mison 7 laid down the requirement of good faith in the reorganization of a government bureau wherein offices are abolished. It says:

. . . Reorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in "good faith" if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall. Be that as it may, if the "abolition," which is nothing else but a separation or removal, is done for political reasons or purposely to defeat security of tenure, or otherwise not in good faith, no valid "abolition" takes place and whatever "abolition" is done, is void ab initio. There is an invalid "abolition" as where there is merely a change of nomenclature of positions, or where claims of economy are belied by the existence of ample funds. It is to be stressed that by predisposing a reorganization to the yardstick of good faith, we are not, as a consequence, imposing a "cause" for restructuring. Retrenchment in the course of a reorganization in good faith is still removal "not for cause" if by "cause" we refer to "grounds" or conditions that call for

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disciplinary action. Good faith, as a component of a reorganization under a constitutional regime, is judged from the facts of each case.

In Petitioner's case, the following instances are cited by her as indicia of bad faith:

1. The abolished department was later restored and the number of senior vice presidents was increased.

2. PNB did not follow the prescribed sequence of separation of employees from the service contained in Rep. Act No. 6656 which is:

Sec. 3. In the separation of personnel pursuant to reorganization, the following order of removal shall be followed:

(a) Casual employees with less than five (5) years of government service;

(b) Casual employees with five (5) years or more of government service;

(c) Employees holding temporary appointments; and

(d) Employees holding permanent appointments: Provided, That those in the same category as enumerated above, who are least qualified in terms of performance and merit shall be laid off first, length of service notwithstanding.

3. Petitioner was not extended preference in appointment to the positions in the new staffing pattern as mandated by Sec. 4 of Rep. Act 6656, her qualification and fitness for new positions were never evaluated or considered in violation of Sec. 27 of P.D. 807 which was incorporated as Sec. 29 Ch. 5 Subtitle A, Book V of the Administrative Code of 1987.

4. Lack of notice and bearing before separation from the service.

5. Petitioner was forced to take a leave of absence and prevented from reporting for work.

6. There is a discrepancy in the date of her separation from the service and the effectivity thereof.

7. PNB employees in the Fund Transfer Department identified with her were reassigned or frozen.

8. She is listed as having resigned instead of being separated or dismissed which was what actually happened.

9. The dismissal was politically motivated, she being a sister of Mrs. Imelda Romualdez Marcos, wife of deposed President Ferdinand Marcos.

Executive Order No. 80 conferred upon the PNB the authority to reorganize. The order was issued by then Pres. Corazon Aquino on 3 December 1986 while she was exercising the powers vested in the President of the Philippines by the Freedom Constitution. After 3 December 1986, what remained to be done was the implementation of the reorganization. There is no doubt as to the legal basis for PNB's reorganization. The real question is: was it done in good faith, tested by the Dario v. Mison doctrine?

To start with it is almost absurd for petitioner to insist that her termination from the service was antedated to 16 February 1986. At that time, the reorganization of PNB had not even been conceived. In most of PNB's pleadings, it has documented and supported its stand that the year of petitioner's separation is 1987 not 1986. The antedating of the termination date, aside from being clearly a typographical error, is a periphernal issue. The real issue is existence of bad faith consisting of tangible bureaucratic/management pressures exerted to ease her out of office. Bad faith has been defined as a state of mind affirmatively operating with furtive design or with some motive of self interest or ill will or for an ulterior purpose. 8 It is the performance of an act with the knowledge that the actor is violating the fundamental law or right, even without willful intent to injure or purposive malice to perpetrate a damnifying harm. 9

PNB's reorganization, to repeat, was by virtue of a valid law. At the time of reorganization, due to the critical financial situation of the bank, departments, positions and functions were abolished or merged. The abolition of the Fund Transfer Department (FTD) was deemed necessary. This, to the Court's mind, was a management prerogative exercised pursuant to a business judgment. At this point, a distinction can be made in ruling on the validity of a reorganization between a government bureau or office performing constituent functions (like the Customs) and a government-owned or controlled corporation performing ministrant functions (like the PNB).

Constituent function are those which constitute the very bonds of society and are compulsory in nature; ministrant functions are those undertaken by way of advancing the general interests of society, and are merely optional. Commercial or universal banking is, ideally, not a governmental but a private sector, endeavor. It is an optional function of government.

. . . The principles determining whether or not a government shall exercise certain of these optional functions are: (1) that a government should do for the public welfare those things which private capital would not naturally undertake and (2) that a government should do those things which by its very, nature it is better equipped to administer for the public welfare than is any private individual or group of individuals (Malcolm, The Government of the Philippine Islands, pp. 19-20)

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From the above we may infer that, strictly speaking, there are functions which our government is required to exercise to promote its objectives as expressed in our Constitution and which are exercised by it as an attribute of sovereignty, and those which it may exercise to promote merely the welfare, progress and prosperity of the people. To this latter class belongs the organization of those corporations owned or controlled by the government to promote certain aspects of the economic life of our people such as the National Coconut Corporation. These are what we call government-owned or controlled corporations which may take on the form of a private enterprise or one organized with powers and formal characteristics of a private corporation under the Corporation Law. (Bacani vs. Nacoco, No, L-9657, November 29, 1956, 100 Phil. 468)

But a reorganization whether in a government bureau performing constituent functions or in a government-owned or controlled corporation performing ministrant functions must meet a common test, the test of good faith. In this connection, the philosophy behind PNB's reorganization is spelled out in the whereas clauses of Executive Order No. 80:

WHEREAS, within the context of the general policy there nevertheless exists a clear role for direct government-participation in the banking system, particularly in servicing the requirements of agriculture, small and medium scale industry, export development, and the government sector.

WHEREAS, in pursuit of this national policy there is need to restructure the government financial institutions, particularly the Philippine National Bank, to achieve a more efficient and effective use of available scarce resources, to improve its viability, and to avoid unfair competition with the private sector, and

WHEREAS, the reorganization and rehabilitation of the Philippine National Bank into a similar but stronger and more operationally viable bank is an important component of the nationalization programs for both the financial system and the government corporation sector; . . . .

Whether there was a hidden political agenda to persecute petitioner due to her consanguinial relation to Mrs. Imelda Romualdez Marcos, the widow of former President Marcos, is not clearly shown. On the other hand, it is entirely possible that, precisely because of such consanguinial relation, petitioner may have been the object of deferential, if not special treatment under the Marcos regime. It is part of the Filipino culture to extend such deferential, if not special treatment to close relatives of persons in power. Many times this is carried to unwholesome extremes. But a discontinuance of such deferential or special treatment in the wake of a change in government or administration is not bad faith per se. It may be merely putting things in their proper places.

Due to the restructuring — and this is empirically verifiable — PNB became once more a viable banking institution. The restoration of the FTD four years after it was abolished and its functions transferred to the International Department, can be attributed to the bank's growth after reorganizations, thereby negating malice or bad faith in that reorganization. The essence of good faith lies in an honest belief in the validity of one's right. 10 It consists of an honest intention to abstain from taking an unconscionable and unscrupulous advantage of another, its absence should be established by convincing evidence. 11

The records also clearly indicate that starting April 1986 to February 1987, petitioner went on leave of absence for medical reasons. While she was not reporting to the office, the bank's reorganization got underway. She continued, however, receiving her salaries, allowances, emoluments, honoraria and fees up to March 1987. Employees who were affected by the reorganization had the option to avail of the bank's Separation Benefits Plan/Early Retirement Plan (SBP/ERIP). Petitioner opted not to avail of such plan and instead submitted to the result of the bank's ongoing reorganization and management's discretion. If petitioner had the desire for continued employment with the bank, she could have asserted it for management's consideration. There is no proof on record that she affirmatively expressed willingness to be employed. Since she cannot rebut the CSC finding that her earliest appeal was made on 4 August 1989, there is no reason for this Court to hold that she did not sleep on her rights. On the contrary, her present argument that bad faith existed at the time of the abolition of the FTD because it was restored four years later is a little too late. Who could have predicted in 1986 or 1987 that PNB would be able to rise from its financial crisis and become a viable commercial bank again? The decision to abolish the FTD at the time it was abolished, to repeat, was a business judgment made in good faith.

PNB for its part submits that its reorganization was effected in good faith because —

a) There was not only a perceptible but substantial restructuring of the PNB hierarchy showing reduction of personnel, consolidation of offices and abolition of positions.

b) Two thousand one hundred thirty two (2,132) positions were abolished during the period from February 16, 1986 to January 14, 1987 leaving a lean workforce of five thousand four hundred five (5,405) as of latter date per B.R. No. 34 hereto attached as Annex "R".

c) The number of senior officers, including Senior Vice Presidents, was accordingly reduced.

Another issue raised by petitioner is PNB's alleged non-compliance with the mandate of Sections 2 and 4 of Rep. Act No. 6656. These Sections provide:

Sec. 2. No officer or employee in the career service shall be removed except for a valid cause and after due notice and hearing. A valid cause for removal exists when, pursuant to a bona fide reorganization, a position has been abolished or rendered redundant or there is a need to merge, divide, or consolidate positions in order to meet the exigencies of the service, or other lawful causes allowed by the Civil Service Law. The existence of any or some of the following

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circumstances may be considered as evidence of bad faith in the removals made as a result of reorganization, giving to a claim for reinstatement or reappointment by an aggrieved party.

(a) Where there is a significant increase in the number of positions in the new staffing pattern of the department or agency concerned;

(b) Where an office is abolished and another performing substantially the same functions is created;

(c) Where incumbents are replaced by those less qualified in terms of status of appointment, performance and merit;

(d) Where there is a reclassification of offices in the department or agency concerned and the reclassified offices perform substantially the same functions as the original offices;

(e) Where the removal violates the order of separation provided in Section 3 hereof.

xxx xxx xxx

Sec. 4. Officers and employees holding permanent, appointments shall be given preference for appointment to the new position in the approved staffing pattern comparable to their former positions or in case there are not enough comparable positions, to positions next lower in rank.

No new employees shall be taken in until all permanent officers and employees have been appointed, including temporary and casual employees who possess the necessary qualification requirements, among which is the appropriate civil service eligibility, for permanent appointment to positions in the approved staffing pattern, in case there are still positions to be filled, unless such positions are policy-determining, primarily confidential or highly technical in nature.

In the first place, Rep. Act No. 6656 cannot be invoked by petitioner because it took effect on 15 June 1987, or after PNB's reorganization had already been implemented. But assuming, ex gratia argumenti, that it is applicable here and petitioner must be accorded preferential right to appointment in the bank, PNB in its rejoinder impressively asserts:

Needless to say, there were various committees that were created in the implementation of the organizational restructuring of the Bank based on the foregoing policy guidelines. Each personnel to be retained was evaluated in terms of relative fitness and merit along with the other personnel of the Bank. Thus, when then SVP Federico Pascual was chosen to head the International Department from among other officers of the Bank, including Ms. Yap, his qualifications far exceeded those of the other candidates for the position.

We attach hereto as Annexes "G-1" and "G-2" the service records of Mr. Federico Pascual and Petitioner Ms. Yap, respectively, which clearly show that the qualifications of Mr. Pascual far exceed those of Petitioner Yap. Aside from being a lawyer having been a law graduate from the University of the Philippines, he is also a Bachelor of Arts degree holder from Ateneo de Manila and a Master of Laws graduate o Columbia Law School. He had studied Masteral Arts in Public Administration at the London School of Economics and had undergone extensive seminars since 1974 at the International Department and had been assigned in several foreign branches of the Bank. Before he resigned from the Bank, he held the second highest position of Executive Vice President and served as Acting President of the Bank before the incumbent president, President Gabriel Singson assumed his position.

On the other hand, the service record of Petitioner Yap will show that she only holds a Bachelor of Science in Commerce Degree from Assumption Convent and has undergone only one seminar on Management and Leadersbip Training Program. She entered the Bank service in 1972. (Rollo at pp. 312 to 313)

xxx xxx xxx

The prayer in the petition at bar seeks petitioner's immediate reinstatement to her former position as senior vice president and head of the Fund Transfer Department, or reappointment to a position of comparable or equivalent rank without loss of seniority rights and pay, etc., under the bank's new staffing pattern.

A person claiming to be entitled to a public office or position usurped or unlawfully held or exercised by another may bring an action for quo warranto (Rule 66, Sec. 6, Rules of Court). The petitioner therein must show a clear legal right to the office allegedly held unlawfully by another. 12

An action for quo warranto should be brought within one (1) year after ouster from office; 13 the failure to institute the same within the reglementary period constitutes more than a sufficient basis for its dismissal 14 since it is not proper that the title to a public office be subjected to continued uncertainty . . . 15 An exception to this prescriptive period lies only if the failure to file the action can be attributed to the acts of a responsible government officer and not of the dismissed employee. 16

Measured by the above jurisprudence, petitioner's action may be said to be one for quo warranto, seeking reinstatement to her former position which at present is occupied by another. She cannot invoke De Tavera v. Phil.Tuberculosis Society, Inc., et. al. 17 and contend that

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there is no claim of usurpation of office, and that quo warranto may be availed of to assert one's right to an office in the situation obtaining in the case at bar.

Santos v. CA, et. al. 18 and Magno v. PNNC Corp. 19 are invoked by petitioner to illustrate that this action is one for separation without just cause, hence, the prescriptive period is allegedly four (4) years in accordance with Article 1146 of the Civil Code. 20 We do not agree. Petitioner's separation from the service was due to the abolition of her office in implementation of a valid reorganization. This is not the unjustifiable cause which results in injury to the rights of a person contemplated by Article 1146. The abolition of the office was not a whimsical, thoughtless move. It was a thoroughly evaluated action for streamlining functions based on a rehabilitation plan. 21At the time of the abolition of the Fund Transfer Department in 1986, foreign exchange losses of the bank amounted to P81.1 Million. 22 The head of office was a Senior Vice President. At the time of restoration of the department in 1991, it was headed by a vice president (lower in rank) and showed earnings of P2,620.0 Million. 23Other departments abolished in 1986 were also subsequently restored.

Restoring petitioner to her previous position with backwages would be unjust enrichment to her, considering that she had abandoned or showed lack of interest in reclaiming the same position when the bank was not yet fully rehabilitated and she only insisted on reinstatement in August 1989 or two (2) years after her alleged unjustified separation.

To those who feel that their unjustified separation from the service is for a cause beyond their control, the aforecited Magno case teaches:

. . . while We fully recognize the special protection which the Constitution, labor laws, and social legislation accord the workingman, We cannot, however, alter or amend the law on prescription to relieve him of the consequences of his inaction. Vigilantibus, non dormientibus, jura subveniunt (Laws come to the assistance of the vigilant, not of the sleeping). His explanation that he could not have filed the complaint earlier because "he was prevented to do so beyond his control for the simple reason that private respondent have (sic) tried to circumvent the law by merely floating" him is very flimsy and does not even evoke sympathetic consideration, if at all it is proper and necessary. We note that petitioner herein is not an unlettered man; he seems to be educated and assertive of his rights and appears to be familiar with judicial procedures. He filed a motion for extension of time to file the petition and the petition itself without the assistance of counsel. We cannot believe that if indeed he had a valid grievance against PNCC he would not have taken immediate positive steps for its redress.

WHEREFORE, premises considered, the assailed CSC resolution is AFFIRMED. The petition is DISMISSED for failure to show grave abuse of discretion on the part of said CSC in rendering the questioned resolution. No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Quiason, Puno and Vitug, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 109704 January 17, 1995

ALFREDO B. FELIX, petitioner, vs.DR. BRIGIDA BUENASEDA, in her capacity as Director, and ISABELO BAÑEZ, JR., in his capacity as Administrator, both of the National Center for Mental Health, and the CIVIL SERVICE COMMISSION,respondents.

KAPUNAN, J.:

Taking advantage of this Court's decisions involving the removal of various civil servants pursuant to the general reorganization of the government after the EDSA Revolution, petitioner assails his dismissal as Medical Specialist I of the National Center for Mental Health (formerly the National Mental Hospital) as illegal and violative of the constitutional provision on security of tenure allegedly because his removal was made pursuant to an invalid reorganization.

In Mendoza vs. Quisumbing 1 and the consolidated cases involving the reorganization of various government departments and agencies we held:

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We are constrained to set aside the reorganizations embodied in these consolidated petitions because the heads of departments and agencies concerned have chosen to rely on their own concepts of unlimited discretion and "progressive" ideas on reorganization instead of showing that they have faithfully complied with the clear letter and spirit of the two Constitutions and the statutes affecting reorganization. 2

In De Guzman vs. CSC 3, we upheld the principle, laid down by Justice J.B.L. Reyes in Cruz vs. Primicias 4 that a valid abolition of an office neither results in a separation or removal, likewise upholding the corollary principle that "if the abolition is void, the incumbent is deemed never to have ceased to hold office," in sustaining therein petitioner's right to the position she held prior to the reorganization.

The instant petition on its face turns on similar facts and issues, which is, that petitioner's removal from a permanent position in the National Center for Mental Health as a result of the reorganization of the Department of Health was void.

However, a closer look at the facts surrounding the instant petition leads us to a different conclusion.

After passing the Physician's Licensure Examinations given by the Professional Regulation Commission in June of 1979, petitioner, Dr. Alfredo B. Felix, joined the National Center for Mental Health (then the National Mental Hospital) on May 26, 1980 as a Resident Physician with an annual salary of P15,264.00. 5 In August of 1983, he was promoted to the position of Senior Resident Physician 6 a position he held until the Ministry of Health reorganized the National Center for Mental Health (NCMH) in January of 1988, pursuant to Executive Order No. 119.

Under the reorganization, petitioner was appointed to the position of Senior Resident Physician in a temporary capacity immediately after he and other employees of the NCMH allegedly tendered their courtesy resignations to the Secretary of Health. 7 In August of 1988, petitioner was promoted to the position of Medical Specialist I (Temporary Status), which position was renewed the following year. 8

In 1988, the Department of Health issued Department Order No. 347 which required board certification as a prerequisite for renewal of specialist positions in various medical centers, hospitals and agencies of the said department. Specifically, Department Order No. 347 provided that specialists working in various hospitals and branches of the Department of Health be recognized as "Fellows" of their respective specialty societies and/or "Diplomates" of their specialty boards or both. The Order was issued for the purpose of upgrading the quality of specialties in DOH hospitals by requiring them to pass rigorous theoretical and clinical (bedside) examinations given by recognized specialty boards, in keeping up with international standards of medical practice.

Upon representation of the Chiefs of Hospitals of various government hospitals and medical centers, (then) Secretary of Health Alfredo Bengzon issued Department Order No. 347 providing for an extension of appointments of Medical Specialist positions in cases where the termination of medical specialist who failed to meet the requirement for board certification might result in the disruption of hospital services. Department Order No. 478 issued the following guidelines:

1. As a general policy, the provision of Department Order No. 347, Sec. 4 shall apply unless the Chief of Hospital requests for exemption, certifies that its application will result in the disruption of the delivery service together with the steps taken to implement Section 4, and submit a plan of action, lasting no more than 3-years, for the eventual phase out of non-Board certified medical specialties.

2. Medical specialist recommended for extension of appointment shall meet the following minimum criteria:

a. DOH medical specialist certified

b. Has been in the service of the Department at least three (3) years prior to December 1988.

c. Has applied or taken the specialty board examination.

3. Each recommendation for extension of appointment must be individually justified to show not only the qualification of the recommendee, but also what steps he has taken to be board certified.

4. Recommendation for extension of appointment shall be evaluated on a case to case basis.

5. As amended, the other provisions of Department Order No. 34/s. 1988 stands.

Petitioner was one of the hundreds of government medical specialist who would have been adversely affected by Department Order No. 347 since he was no yet accredited by the Psychiatry Specialty Board. Under Department Order No. 478, extension of his appointment remained subject to the guidelines set by the said department order. On August 20, 1991, after reviewing petitioner's service record and performance, the Medical Credentials Committee of the National Center for Mental Health recommended non-renewal of his appointment as Medical Specialist I, informing him of its decision on August 22, 1991. He was, however, allowed to continue in the service, and receive his salary, allowances and other benefits even after being informed of the termination of his appointment.

On November 25, 1991, an emergency meeting of the Chiefs of Service was held to discuss, among other matters, the petitioner's case. In the said meeting Dr. Vismindo de Grecia, petitioner's immediate supervisor, pointed out petitioner's poor performance, frequent tardiness and inflexibility as among the factors responsible for the recommendation not to renew his appointment. 9 With one exception, other department heads present in the meeting expressed the same opinion, 10 and the overwhelming concensus was for non-renewal. The matter was thereafter referred to the Civil Service Commission, which on February 28, 1992 ruled that "the temporary appointment (of petitioner) as Medical Specialist I can be terminated at any time . . ." and that "[a]ny renewal of such appointment is within the discretion of

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the appointing authority." 11 Consequently, in a memorandum dated March 25, 1992 petitioner was advised by hospital authorities to vacate his cottage since he was no longer with said memorandum petitioner filed a petition with the Merit System Protection Board (MSPB) complaining about the alleged harassment by respondents and questioning the non-renewal of his appointment. In a Decision rendered on July 29, 1992, the (MSPB) dismissed petitioner's complaint for lack of merit, finding that:

As an apparent incident of the power to appoint, the renewal of a temporary appointment upon or after its expiration is a matter largely addressed to the sound discretion of the appointing authority. In this case, there is no dispute that Complainant was a temporary employee and his appointment expired on August 22, 1991. This being the case, his re-appointment to his former position or the renewal of his temporary appointment would be determined solely by the proper appointing authority who is the Secretary, Department of Health upon the favorable recommendation of the Chief of Hospital III, NCMH. The Supreme Court in the case of Central Bank vs. Civil Service Commission G.R. Nos. 80455-56 dated April 10, 1989, held as follows:

The power of appointment is essentially a political question involving considerations of wisdom which only the appointing authority can decide.

In this light, Complainant therefore, has no basis in law to assail the non-renewal of his expired temporary appointment much less invoke the aid of this Board cannot substitute its judgment to that of the appointing authority nor direct the latter to issue an appointment in the complainant's favor.

Regarding the alleged Department Order secured by the complainant from the Department of Health (DOH), the Board finds the same inconsequential. Said Department Order merely allowed the extension of tenure of Medical Specialist I for a certain period but does not mandate the renewal of the expired appointment.

The Board likewise finds as baseless complainant's allegation of harassment. It should be noted that the subsistence, quarters and laundry benefits provided to the Complainant were in connection with his employment with the NCMH. Now that his employment ties with the said agency are severed, he eventually loses his right to the said benefits. Hence, the Hospital Management has the right to take steps to prevent him from the continuous enjoyment thereof, including the occupancy of the said cottage, after his cessation form office.

In sum, the actuations of Dr. Buenaseda and Lt. Col. Balez are not shown to have been tainted with any legal infirmity, thus rendering as baseless, this instant complaint.

Said decision was appealed to the Civil Service Commission which dismissed the same in its Resolution dated December 1, 1992. Motion for Reconsideration was denied in CSC Resolution No. 93-677 dated February 3, 1993, hence this appeal, in which petitioner interposes the following assignments of errors:

I

THE PUBLIC RESPONDENT CIVIL SERVICE COMMISSION ERRED IN HOLDING THAT BY SUBMITTING HIS COURTESY RESIGNATION AND ACCEPTING HIS TEMPORARY APPOINTMENT PETITIONER HAD EFFECTIVELY DIVESTED HIMSELF OF HIS SECURITY OF TENURE, CONSIDERING THE CIRCUMSTANCES OF SUCH COURTESY RESIGNATION AND ACCEPTANCE OF APPOINTMENT.

II

THE RESPONDENT COMMISSION IN NOT DECLARING THAT THE CONVERSION OF THE PERMANENT APPOINTMENT OF PETITIONER TO TEMPORARY WAS DONE IN BAD FAITH IN THE GUISE OF REORGANIZATION AND THUS INVALID, BEING VIOLATIVE OF THE PETITIONER'S RIGHT OF SECURITY OF TENURE.

Responding to the instant petition, 12 the Solicitor General contends that 1) the petitioner's temporary appointment after the reorganization pursuant to E.O. No. 119 were valid and did not violate his constitutional right of security of tenure; 13 2) petitioner is guilty of estoppel or laches, having acquiesced to such temporary appointments from 1988 to 1991; 14 and 3) the respondent Commission did not act with grave abuse of discretion in affirming the petitioner's non-renewal of his appointment at the National Center for Mental Hospital. 15

We agree.

The patent absurdity of petitioner's posture is readily obvious. A residency or resident physician position in a medical specialty is never a permanent one. Residency connotes training and temporary status. It is the step taken by a physician right after post-graduate internship (and after hurdling the Medical Licensure Examinations) prior to his recognition as a specialist or sub-specialist in a given field.

A physician who desires to specialize in Cardiology takes a required three-year accredited residency in Internal Medicine (four years in DOH hospitals) and moves on to a two or three-year fellowship or residency in Cardiology before he is allowed to take the specialty examinations given by the appropriate accrediting college. In a similar manner, the accredited Psychiatrist goes through the same stepladder process which culminates in his recognition as a fellow or diplomate (or both) of the Psychiatry Specialty Board. 16 This upward movement from residency to specialist rank, institutionalized in the residency training process, guarantees minimum standards and skills and ensures that the physician claiming to be a specialist will not be set loose on the community without the basic knowledge and skills of his specialty. Because acceptance and promotion requirements are stringent, competitive, and based on merit. acceptance to a first year residency program is no guaranty that the physician will complete the program. Attribution rates are high. Some programs are pyramidal. Promotion to the next post-graduate year is based on merit and performance determined by periodic evaluations and examinations of

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knowledge, skills and bedside manner. 17 Under this system, residents, specialty those in university teaching hospitals 18 enjoy their right to security of tenure only to the extent that they periodically make the grade, making the situation quite unique as far as physicians undergoing post-graduate residencies and fellowships are concerned. While physicians (or consultants) of specialist rank are not subject to the same stringent evaluation procedures, 19 specialty societies require continuing education as a requirement for accreditation for good standing, in addition to peer review processes based on performance, mortality and morbidity audits, feedback from residents, interns and medical students and research output. The nature of the contracts of resident physicians meet traditional tests for determining employer-employee relationships, but because the focus of residency is training, they are neither here nor there. Moreover, stringent standards and requirements for renewal of specialist-rank positions or for promotion to the next post-graduate residency year are necessary because lives are ultimately at stake.

Petitioner's insistence on being reverted back to the status quo prior to the reorganizations made pursuant to Executive Order No. 119 would therefore be akin to a college student asking to be sent back to high school and staying there. From the position of senior resident physician, which he held at the time of the government reorganization, the next logical step in the stepladder process was obviously his promotion to the rank of Medical Specialist I, a position which he apparently accepted not only because of the increase in salary and rank but because of the prestige and status which the promotion conferred upon him in the medical community. Such status, however, clearly carried with it certain professional responsibilities including the responsibility of keeping up with the minimum requirements of specialty rank, the responsibility of keeping abreast with current knowledge in his specialty rank, the responsibility of completing board certification requirements within a reasonable period of time. The evaluation made by the petitioner's peers and superiors clearly showed that he was deficient in a lot of areas, in addition to the fact that at the time of his non-renewal, he was not even board-certified.

It bears emphasis that at the time of petitioner's promotion to the position of Medical Specialist I (temporary) in August of 1988, no objection was raised by him about the change of position or the temporary nature of designation. The pretense of objecting to the promotion to specialist rank apparently came only as an afterthought, three years later, following the non-renewal of his position by the Department of Health.

We lay stress to the fact that petitioner made no attempt to oppose earlier renewals of his temporary Specialist I contracts in 1989 and 1990, clearly demonstrating his acquiescence to — if not his unqualified acceptance of the promotion (albeit of a temporary nature) made in 1988. Whatever objections petitioner had against the earlier change from the status of permanent senior resident physician to temporary senior physician were neither pursued nor mentioned at or after his designation as Medical Specialist I (Temporary). He is therefore estopped from insisting upon a right or claim which he had plainly abandoned when he, from all indications, enthusiastically accepted the promotion. His negligence to assert his claim within a reasonable time, coupled with his failure to repudiate his promotion to a temporary position, warrants a presumption, in the words of this Court in Tijam vs. Sibonghanoy, 20 that he "either abandoned (his claim) or declined to assert it."

There are weighty reasons of public policy and convenience which demand that any claim to any position in the civil service, permanent, temporary of otherwise, or any claim to a violation of the constitutional provision on security of tenure be made within a reasonable period of time. An assurance of some degree of stability in the civil service is necessary in order to avoid needless disruptions in the conduct of public business. Delays in the statement of a right to any position are strongly discouraged. 21 In the same token, the failure to assert a claim or the voluntary acceptance of another position in government, obviously without reservation, leads to a presumption that the civil servant has either given up his claim of has already settled into the new position. This is the essence of laches which is the failure or neglect, for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier; it is the negligence or omission to assert a right within a reasonable time, warranting a presumption that the party entitled to assert it either has abandoned it or declined to assert it. 22

In fine, this petition, on its surface, seems to be an ordinary challenge against the validity of the conversion of petitioner's position from permanent resident physician status to that of a temporary resident physician pursuant to the government reorganization after the EDSA Revolution. What is unique to petitioner's averments is the fact that he hardly attempts to question the validity of his removal from his position of Medical Specialist I (Temporary) of the National Center for Mental Health, which is plainly the pertinent issue in the case at bench. The reason for this is at once apparent, for there is a deliberate and dishonest attempt to a skirt the fundamental issue first, by falsely claiming that petitioner was forced to submit his courtesy resignation in 1987 when he actually did not; and second, by insisting on a right of claim clearly abandoned by his acceptance of the position of Medical Specialist I (Temporary), which is hence barred by laches.

The validity of the government reorganization of the Ministry of Health pursuant to E.O. 119 not being the real issue in the case at bench, we decline to make any further pronouncements relating to petitioner's contentions relating to the effect on him of the reorganization except to say that in the specific case of the change in designation from permanent resident physician to temporary resident physician, a change was necessary, overall, to rectify a ludicrous situation whereby some government resident physicians were erroneously being classified as permanent resident physicians in spite of the inherently temporary nature of the designation. The attempts by the Department of Health not only to streamline these positions but to make them conform to current standards of specialty practice is a step in a positive direction. The patient who consults with a physician of specialist rank should at least be safe in the assumption that the government physician of specialist rank: 1.) has completed all necessary requirements at least assure the public at large that those in government centers who claim to be specialists in specific areas of Medicine possess the minimum knowledge and skills required to fulfill that first and foremost maxim, embodied in the Hippocratic Oath, that they do their patients no harm. Primium non nocere.

Finally, it is crystal clear, from the facts of the case at bench, that the petitioner accepted a temporary appointment (Medical Specialist I). As respondent Civil Service Commission has correctly pointed out 23, the appointment was for a definite and renewable period which, when it was not renewed, did not involve a dismissal but an expiration of the petitioner's term.

ACCORDINGLY, the petition is hereby DISMISSED, for lack of merit.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Vitug and Mendoza, JJ., concur.

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Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 88498 June 9, 1992

GENEROSO R. SEVILLA, petitioner, vs.THE HON. COURT OF APPEALS and NERITO L. SANTOS, respondents.

GRIÑO-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.

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On November 14, 1986, the Minister of Public Works and Highways, Rogaciano Mercado, designated Sevilla asActing 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 mandamuspetition 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

Public Officers and Election Laws 112

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 forquo 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.

Cruz, Medialdea and Bellosillo, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 101251 November 5, 1992

ELISEO A. SINON, petitioner, vs.CIVIL SERVICE COMMISSION, DEPARTMENT OF AGRICULTURE-REORGANIZATION APPEALS BOARD AND JUANA BANAN, respondents.

CAMPOS, JR., J.:

Public Officers and Election Laws 113

This petition for certiorari seeks to annul the following Resolutions of the public respondents Civil Service Commission (the "CSC") * and Department of Agriculture Reorganization Appeals Board (the "DARAB"), ** to wit:

1. Resolution No. 97 dated August 23, 1989, issued by respondent DARAB which revoked petitioner's permanent appointment as Municipal Agriculture Officer (MAO) and appointed, in his stead, private respondent Juana Banan (Rollo 17);

2. Resolution dated February 8, 1991 issued by the respondent CSC affirming the aforementioned Resolution of respondent DARAB (Rollo 22);

3. Resolution dated July 11, 1991 issued by the respondent CSC which denied petitioner's motion for the reconsideration of the respondent Commission's Resolution dated February 8, 1991. 1

The antecedent facts are as follows:

Prior to the reorganization of the then Minister of Agriculture and Food (the "MAF"), the private respondent Juana Banan was the incumbent Municipal Agricultural Officer (MAO) of the aforesaid Minister in Region II, Cagayan, while the petitioner Eliseo Sinon occupied the position of Fisheries Extension Specialist (FES) II in the Bureau of Fisheries and Aquatic Resources (BFAR) in the same region.

However, the reorganization of the MAF into the Department of Agriculture (the "DA"), with the issuance of Executive Order No. 116 dated 30 January 1987, called for the evaluation of the following employees for twenty nine position of MAO in Region II, Cagayan. The list as prepared by the Placement Committee included the herein petitioner Sinon but excluded the respondent Banan:

1. Binoya, Vicente 76.20%

2. Cabana, Isidro 75.01%

3. Sebastian, Alice 74.18%

4. Zingapan, Benjamin 70.73%

5. Guzman, Wilhemina de la P. 70.50%

6. Gervacio, Agnes 69.86%

7. Somera, Hilario S. 68.13%

8. Tolentino, Julian R. 67.64%

9. Guillermo, Pedro 67.22%

10. Tambio, Rodolfo 67.00%

11. Aquino, Martina 66.94%

12. Bassig, Pio P. 66.84%

13. Rumpon, Danilo P. 65.61%

14. Zareno, Bernardo 65.57%

15. Madrid, Angel S. 65.57%

16. Callangan, Napoleon 65.45%

17. Fiesta, Felicisimo 65.29%

18. Alvarez, Benefranco 64.99%

19. Baggayan, Samuel O. 64.42%

20. Umbay, Pedro T. 64.01%

21. De la Cruz, Florencio M. 62.07%

22. Leonador, Ernesto T. 61.88%

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23. Miguel, Jose 61.86%

24. Berlan, Herminia C. 61.76%

25. Soliman, Clemente 61.52%

26. Llopis, Lino 61.47%

27. Baliuag, Felicidad 61.39%

28. Aresta, Leticia 60.67%

29. Sinon, Eliseo A. 60.66% 2

(Emphasis supplied)

Thus, respondents Banan filed an appeal with the DARAB for re-evaluation of the qualification of all those included in the aforementioned list made by the Placement Committee.

On August 23, 1989, the DARAB released Resolution No. 97 in which the ranking for 29 MAO prepared by the Placement Committee was re-evaluated as follows:

1. Binoya, Vicente 76.20%

2. Cabana, Isidro 75.01%

3. Sebastian, Alice 72.18%

4. Zingapan, Benjamin 70.73%

5. Guzman, Wilhemina de la P. 70.50%

6. Gervacio, Agnes 70.04%

7. Somera, Hilario S. 68.13%

8. Tolentino, Julian Jr. 67.22%

9. Guillermo, Pedro 67.22%

10. Tambio, Rodolfo 67.00%

11. Aquino, Martina D. 66.94%

12. Bassig, Pio P. 66.84%

13. Rumpon, Danilo P. 65.61%

14. Madrid, Angel 65.57%

15. Callangan, Napoleon 65.45%

16. Fiesta, Felicisimo 65.29%

17. Alvarez, Benefranco 64.99%

18. Baggayan, Samuel O. 64.42%

19. Umbay, Pedro T. 64.01%

20. De la Cruz, Florencio M. 62.07%

21. Leonador, Ernesto T. 61.88%

22. Miguel, Jose L. 61.86%

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23. Berlan, Herminia C. 61.76%

24. Soliman, Clemente 61.52%

25. Zareno, Bernardo 61.50%

26. Llopis, Lino 61.47%

27. Baliuag, Felicidad 61.39%

28. Aresta, Leticia 60.67%

29. Banan, Juana 59.32% 2

(Emphasis supplied)

In this re-evaluation, petitioner Sinon was displaced by the respondent Banan and this same resolution was duly approved by the Secretary of the Department of Agriculture, Carlos G. Dominguez, who also affixed his signature on the same date.

However, on August 30, 1988, Sinon received an appointment as MAO for Region II in Cagayan as approved by Regional Director Gumersindo D. Lasam on the basis of the first evaluation made by the Placement Committee.

Thus, Sinon filed an appeal docketed as Civil Service Case No. 573 on November 22, 1989 to the CSC. This appeal was granted mainly for two reasons: first, the respondent DARAB failed to file its Comment within the period required; and second, the evaluation of the qualification of the employees is a question of fact which the appointing authority or the Placement Committee assisting him is in a better position to determine. Hence, the Resolution dated 28 February 1989 of the DARAB was set aside. 4

On March 19, 1990, Banan filed a Motion for Reconsideration in which she pitted her qualifications against Sinon for the last slot in the 29 available MAO positions. At the same time, she pointed out that to allow the findings of the Placement Committee to supersede the DARAB resolution which the Secretary of Agriculture had approved would be tantamount to giving precedence to the Placement Committee over the head of the agency.

Finally, on February 8, 1991, CSC, after reviewing the Comment filed by the DARAB which had not been considered earlier in the Civil Service Case No. 573, the CSC granted respondent Banan's Motion for Reconsideration and gave due course to her appointment by the DARAB.

On March 21, 1991, Sinon filed a Motion for Reconsideration of the February 8, 1991 Resolution which however was denied by the CSC in its assailed Resolution dated July 11, 1991.

According to the respondent CSC:

Mr. Sinon strongly argued that the findings of the Placement Committee on the qualifications of the parties should be accorded deference and greater weight over that of the RAB. Under the Placement Committee's evaluation, Mr. Sinon garnered 60.66 while Ms. Juana Banan earned 57.32 after assessing the contending parties qualification in education, relevant experience, eligibility and other factors. Following the request of several parties for reevaluation, the RAB in their decision gave Mr. Sinon 57.66 while Ms. Banan obtained 59.32. Seemingly the findings of the two bodies are in conflict. Mr. Sinon argues that the findings of the Placement Committee should prevail since it is specially mandated by RA 6656.

We disagree. The Placement Committee's function is recommendatory in nature. The agency's Reorganization Appeals Board was specially created by the Circular of the Office of the President dated October 2, 1987 and conferred with authority to review appeals and complaints of officials and employees affected by the reorganization. the decision of the agency RAB has the imprimatur of the Secretary of that agency and is therefore controlling in matters of and is therefore controlling in matters of appointment. Under this principle, the decision of the DARAB in this case enjoys precedence over the Placement Committee. 5

Hence, this petition was filed with a prayer for a writ of preliminary injunction and/or restraining order to enjoin the execution of the assailed resolutions.

Without giving due course to the petition for a writ of preliminary injunction, the court required the parties to file their respective Comments. 6

On 12 November 1991, the Court gave due course to the petition and required the parties to submit their respective Memoranda. 7

The main issue for Our consideration is this: whether or not the CSC committed grave abuse discretion in reviewing and re-evaluating the ring or qualification of the petitioner Sinon.

The arguments of the petitioner can be summed up as follows:

Public Officers and Election Laws 116

1). In issuing the Resolution of 8 February 1991, the CSC in effect revoked the appointment that the petitioner received as early as 30 August 1989 and which was deemed permanent by virtue of the approval of the Regional Director of the Department of Agriculture:

2). In giving petitioner a rating of only 57.66%, 8 from his previous rating of 60.66% and at the same time according a rating of 59.32% to private respondent from a rating of only 57.32%, the CSC departed from its power which is limited only to that of "review", and hence encroached upon the power of appointment exclusively lodged in the appointment authority;

3) In giving due course to the appointment of respondent Banan in its Resolution of 8 February 1991, CSC was directing the appointment of a substitute of their own choice when the power to appoint was exclusively lodged in the appointing authority.

We rule as follows.

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility. 9

Contrary to the allegations of the petitioner, We do not find any evidence of grave abuse of discretion on the part of the CSC when it issued Resolution dated 8 February 1991 which in effect approved the appointment of respondent Banan over petitioner Sinon.

With the reorganization of the MAF into the DA with Executive order No. 116, it became imperative to "protect the security of tenure of Civil Service Officers and employees in the implementation of government reorganization". Thus, Congress passed Republic Act No. 6656. 10

It was under the same law of R.A. 6656 that the Placement Committee was created:

Section 6. In order that the best qualified and mot deserving persons shall be appointed in any reorganization, there shall be created a Placement Committee in each department or agency to assist the appointing authority in the judicious selection and placement of personnel. The Committee shall consist of two (2) members appointed by the head of the department or agency, a representative of the appointing authority, and two (2) members duly elected by the employees holding positions in the first and second levels of the career service: Provided, that if there is a registered employee association with a majority of the employees as members, that employee association shall also have a representative in the Committee: Provided, Further, that immediately upon the approval of the staffing pattern of the department or agency concerned, such staffing pattern shall be made known to all officers and employees of the agency who shall be invited to apply for any of the positions authorized therein. Such application shall be considered by the committee in the placement and selection of personnel. (Emphasis supplied).

To "assist" mean to lend an aid to, 11 or to contribute effort in the complete accomplishment of an ultimate purpose intended to be effected by those engaged. 12

In contrast, to "recommend" 13 is to present one's advice or choice as having one's approval or to represent or urge as advisable or expedient. It involves the Idea that another has the final decision.

Clearly, the Placement Committee was charged with the duty of exercising the same discretionary functions as the appointing authority in the judicious selection and placement of personnel when the law empowered it to "assist" the appointment authority.

The same law also allows any officer or employee aggrieved by the appointments to file an appeal with the appointing authority who shall made a decision within thirty (30) days from the filing thereof. If the same employee is still not satisfied with the decision of the appointing authority, he may further appeal within ten (10) days from the receipt thereof the CSC. 14

In the case at bar, the Circular dated October 2, 1987 of the Office of the President created the agency Reorganization Appeals Board to address the problem of the employees affected by the reorganizations.

The foregoing legal measures spell out the remedies of aggrieved parties which make it impossible to give the status of finality to any appointment until all protests or oppositions are duly heard.

Thus, while it is true that the appointment paper received by petitioner Sinon on 30 August 1989 for the position of MAO had not conferred any permanent status and was still subject to the following conditions attached to any appointment in the civil service:

Provided that there is 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 . 15

Hence, for as long as the re-evaluation of the qualification filed by Banan was pending, the petitioner cannot claim that he had been issued with a "complete" appointment. Neither is there any point in asserting that his appointment had "cured" whatever changes was subsequently recommended by the DARAB. 16

Public Officers and Election Laws 117

The fact that the DARAB is capable of re-evaluating the findings of the Placement Committed only to find that Sinon is not qualified should no be taken as a grave abuse of discretion.

We cannot subscribe to petitioner Sinon's insistence that the public respondent CSC had disregarded the findings of the Placement Committee. The truth is, these findings of the Placement Committee. The truth is, these findings were re-evaluated and the report after such re-evaluation was submitted to and approved by the Secretary of Agriculture. The CSC affirmed the findings of the DARAB.

Because of all the foregoing circumstances, the jurisprudence cited by the petitioner Sinon appears to be incorrect. 17

Neither do we find in the Resolution of 8 February 1991, any statement by the CSC directing the appointment of the respondent Banan. Hence, there was no directive from the CSC that may be misinterpreted as a usurpation of any appointing power. 18

Besides, in affirming the appointment of Banan as recommended by the DARAB and approved by the Secretary of Agriculture, the CSC is only being consistent with the law. Section 4 or R.A. 6656 mandates that officers and employees holding permanent appointments shall be given preference for appointment to the new positions in the approved staffing pattern comparable to their former positions. Also, the term incumbent officer and the privileges generally accorded to them would more aptly refer to Banan and not to petitioner Sinon whose appointment was never confirmed completely. 19 There is no dispute that the position of MAO in the old staffing pattern is most comparable to the MAO in the new staffing pattern.

Finally, the Solicitor General in behalf of the CSC correctly noted that the petitioner Sinon had conveniently omitted the then Secretary of Agriculture who had affixed his approval on the findings of the DARAB. Petitioner Sinon knew fully well that as head of the agency, the Secretary of Agriculture was the appointing authority.

It must be recalled that the whole purpose of reorganization is that is it is a "process of restructuring the bureaucracy's organizational and functional set-up, to make it more viable in terms of the economy, efficiency, effectiveness and make it more responsive to the needs of its public clientele as authorized by law." 20 For as long as the CSC confines itself within the limits set out by law and does not encroach upon the prerogatives endowed to other authorities, this Court must sustain the Commission.

WHEREFORE, the petition is DENIED with costs against the petitioner.

SO ORDERED.

Gutierrez, Jr., Cruz, Feliciano, Padilla, Regalado, Davide, Romero, Nocon and Bellosillo, JJ., concur.

Narvasa, C.J. and Medialdea, JJ., is on leave.

Bidin, concur in the result.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. L-26785 May 23, 1991

DEOGRACIAS A. REGIS, JR., petitioner, vs.SERGIO OSMEÑA, JR., VICENTE PACIFICO, CITY OF CEBU, CITY COUNCIL OF CEBU, CITY TREASURER AND CITY AUDITOR, respondents.

Basilio E. Duaban for petitioner.

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

Public Officers and Election Laws 118

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.

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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 Osmeña; 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 1963—Approved 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

Public Officers and Election Laws 120

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:

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(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:

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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:

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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 Piñero, 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; Piñero 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).

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In Aguilar vs. Hon. Augusto L. Valencia, et al., L-30396, 30 July1971, 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 Piñero 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:

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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.

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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 years—since 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. . . .

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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 Osmeña 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 Osmeña, 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.

Fernan C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. L-65439 (UDK-7316) July 31, 1986

PAMANTASAN NG LUNGSOD NG MAYNILA, petitioner, vs.HON. INTERMEDIATE APPELLATE COURT, HON. FILEMON FERNANDEZ, JR., HON. ALBINA MANALODANS, as Commissioners of Civil Service Commission and HERNANI P. ESTEBAN, respondents.

R E S O L U T I O N

GUTIERREZ, JR., J.:

On November 13, 1985, this Court promulgated its decision in G.R. No. 65439 entitled "Pamantasan Ng Lungsod Ng Maynila v. The Hon. Intermediate Appellate Court, et al." dismissing the petition for review and affirming the decision of the Intermediate Appellate Court. The dispositive portion of the decision reads:

WHEREFORE, . . . Resolution No. 81-279 dated March 1, 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 23, 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 have been retired from said service.

We modified the above judgment such that the payment of back salaries should not exceed a period of five (5) years.

On February 14, 1986, an "Ex-Parte Motion for Immediate Execution" was filed by Dr. Esteban before the Regional Trial Court of Manila, Branch XIII. A writ of execution was issued by Judge Rafael Declaro in an order dated February 18, 1986.

On March 3, 1986, the writ of execution was returned unsatisfied by Deputy Sheriff Reynaldo G. Javier with the explanation from the City Legal Officer Augusta O. Casibang (representing respondent Pamantasan) that "the records of the Pamantasan Ng Lungsod Ng Maynila show that Dr. Hernani Esteban had reached the compulsory age of 65 since July 20, 1984, having been born on July 20, 1919. His reinstatement under the expressed terms of the decision being subject to the condition that 'he has not yet reached the age of compulsory retirement' it follows that he cannot be legally reinstated without varying the decision itself. Under the circumstances, the writ of execution for reinstatement of Dr. Esteban is not authorized by the decision itself."

An alias writ of execution was sought by Dr. Esteban but the motion seeking it was denied by Judge Declare in an order dated March 5, 1986. The petitioner's motion for reconsideration was likewise denied in an order dated March 14, 1986. Petitioner Esteban filed a notice of appeal stating that he was appealing the March 5, 1986 and the March 14, 1986 orders to the Supreme Court on pure questions of law.

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Republic Act No. 5440, enacted September 9, 1968, provides that the mode of seeking Supreme Court review of a lower court's final judgment or decree shall be by petition for review on certiorari Since Dr. Esteban erroneously filed a notice of appeal instead of a petition for review and failed to timely pay the docket and legal research fund fees, the questioned orders of the lower court have now become final and executory. On this score alone, this petition or "appeal" may be dismiss outright. The respondent Judge and his Clerk of Court compounded the error when the Judge ordered the elevation of the records to tills Court on the basis of the notice of appeal and the Clerk automatically complied without calling the attention of the Judge to the obvious error.

At any rate, even if we treat this "appeal" as a motion for clarification of our November 13, 1985 decision, which we do, it will have to be denied for lack of merit.

In his motion for reconsideration of the trial court's March 5, 1986 order, Dr. Esteban asserts that it is essential that he be reinstated "not only to correct the wrong done him but, more importantly, to remove the stigma of his illegal and unfair dismissal," citing a recent decision of this Court in G.R. No. L-49071 entitled, The Insular Life Assurance Co., LTD. et al. v. National Labor Relations Commission, et al., (135 SCRA 697).

Section 1, Rule 39 of the Revised Rules of Court provides:

Execution upon final judgment or orders.-Execution shall issue only upon a judgment or order that finally disposes of the action or proceeding. Such execution shall issue as a matter of right upon the expiration of the period to appeal therefrom if no appeal has been duly perfected.

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Execution is a remedy afforded by law for the enforcement of a judgment. It is a judicial writ issued to an officer authorizing and requiting him to execute the judgment of the court (Francisco, The Revised Rules of Court of the Philippines 1966 Edition, Volume II, pp. 592-593). Once judgment becomes final it is basic that the prevailing party is entitled as a matter of right to a writ of execution the issuance of which is the trial court's ministerial duty (Balintawak Construction Supply Corp. v. Valenzuela, 124 SCRA 331; Santos v. Sibug, 104 SCRA 520; Cartoon v. Buissan, 70 SCRA 57; Far Eastern Surety and Insurance Co. Inc. v. Vda. de Hernandez, 67 SCRA 256; Magdangal v. Hawaiian-Philippine Co., 65 SCRA 101; and Bayer Philippines v. Agana, 63 SCRA 355). The writ is compellable by mandamus (Balintawak Construction Supply Corp. v. Valenzuela, supra).

Execution must, however, conform substantially to every essential particular of the judgment issued. An execution which is not warranted by the judgment and exceeds it has no validity. It may not vary the terms of the judgment it seeks to enforce. Where the execution is not in harmony with the judgment which gives it life and exceeds it, it haspro tanto no validity (Collector of Internal Revenue v. Gutierrez, et al., 108 Phil. 215; Windsor Steel Manufacturing Co., Inc. v. Court of Appeals, 102 SCRA 275; Philippine American Accident Insurance Co., Inc. v. Flores, 97 SCRA 811; Araneta v. Perez, 97 SCRA 584; Philippine Virginia Tobacco Administration v. Gonzales, 92 SCRA 172; and Gamboa's Inc. v. Court of Appeals, 72 SCRA 131).

In this case where the decision sought to be enforced specifically provides for Dr. Esteban's reinstatement on the condition that "he has not yet reached the age of compulsory retirement" a writ of execution compelling respondent Pamantasan to reinstate petitioner inspite of his having reached the age of retirement would not be in consonance with the expressed terms of the decision and a writ of execution issued therefor would amount to a nullity, an act in excess of the trial court's jurisdiction.

It is in the faithful performance of the obligations of its office under the law and obedience to the pronouncements of this Court that the trial court denied Dr. Esteban's motion for an alias writ of execution. That of necessity must be so and cannot be otherwise. We must commend rather than fault the trial court for its fealty to duty.

Certainly, it was with fun sympathy that the trial court considered Dr. Esteban's concern that he be "physically" reinstated. Yet the court's power cannot be enlarged by its emotions (McKenna, Herrera v. United States, 22 US 558, 572). As we have pointed out in the case cited by the petitioner, Insular Life Assurance Co. Ltd. et al v. National Labor Relations Commission supra, "reinstatement . . . would (as in this case) merely be symbolic." There is no necessity for symbolism in this case. Our pronouncements have fully vindicated Dr. Esteban from the stigma of dishonorable dismissal. We have upheld his rights and we guarantee the same. We need not punctuate the Pamantasan's errors further. It is with humility that Dr. Esteban should dignify himself in victory.

WHEREFORE, IN VIEW OF THE FOREGOING, the COURT RESOLVED to DISMISS the case now before us. Judge Rafael M. Declaro and Clerk of Court Cesar P. Javier are cautioned to abide by the procedure in Republic Act No. 5440 in future cases of this nature.

SO ORDERED.

Feria, (Chairman), Fernan, Alampay and Paras, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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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 inGold 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

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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 —

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(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.

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(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-

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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

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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?

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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.

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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.

Public Officers and Election Laws 131

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.

Yap, Fernan, Narvasa, Paras, Feliciano, Gancayco, Bidin and Cortes, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

Public Officers and Election Laws 132

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 chanrobles virtual law library

M a d a m: chanrobles virtual law library

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, chanrobles virtual law library

CORAZON C. AQUINO

HON. MARY CONCEPCION BAUTISTA 3 chanrobles virtual law library

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 

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SAMUEL SORIANO - Member HESIQUIO R. MALLILLIN - MemberNARCISO 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, chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 chanrobles virtual law library

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:

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We acknowledge receipt of the communication from the Commission on Appointments requesting our appearance on January 19, 1989 for deliberation on our appointments.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrarychanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrarychanrobles virtual law library

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; chanrobles virtual law library

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; chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

The Commission on Appointments has no jurisdiction under the Constitution to review appointments by the President of Commissioners of the Commission on Human Rights.chanroblesvirtualawlibrary chanrobles virtual law library

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 BAUTISTAChairman 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.chanroblesvirtualawlibrary chanrobles virtual law library

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 interimappointment as Chairperson of the Commission on Human Rights in

Public Officers and Election Laws 135

view of her refusal to submit to the jurisdiction of the Commission on Appointments.chanroblesvirtualawlibrary chanrobles virtual law library

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,

RAOUL V. VICTORINOSecretary11

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.chanroblesvirtualawlibrary chanrobles virtual law library

Thank you for your attention.

Very truly yours,

RAOUL V. VICTORINOSecretary12

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 chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

For all practical purposes, Salonga said Bautista can be accused of usurpation of authority if she insists to stay on her office.chanroblesvirtualawlibrary chanrobles virtual law library

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,

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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 chanrobles virtual law library

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 chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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

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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.chanroblesvirtualawlibrary chanrobles virtual law library

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Public Officers and Election Laws 137

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. ....chanroblesvirtualawlibrary chanrobles virtual law library

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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.chanroblesvirtualawlibrary chanrobles virtual law library

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THE "APPOINTMENT" OF PETITIONER BAUTISTA ON 14 JANUARY 1989 chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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 chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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

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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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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; chanrobles virtual law library

NOW, THEREFORE, I, CORAZON C. AQUINO, President of the Philippines, do hereby order: chanrobles virtual law library

SECTION 1. Section 2, sub-paragraph (c) of Executive Order No. 163 is hereby amended to read as follows: chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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. AQUINOPresident 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

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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).chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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." chanrobles virtual law library

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 thetenure 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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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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 chanrobles virtual law library

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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 chanrobles virtual law library

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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 chanrobles virtual law library

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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

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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 chanrobles virtual law library

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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 chanrobles virtual law library

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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

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.... 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 chanrobles virtual law library

PETITIONER BAUTISTA MAY OF COURSE BE REMOVED BUT ONLY FOR CAUSE chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

A FINAL WORD chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

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.chanroblesvirtualawlibrary chanrobles virtual law library

SO ORDERED.

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Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin, Cortes and Regalado, JJ., concur.chanroblesvirtualawlibrary chanrobles virtual law library

Fernan, C.J., took no part, having administered petitioner's oath of office.chanroblesvirtualawlibrary chanrobles virtual law library

Sarmiento, J., took no part, respondent Mallillin is my godson.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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,

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(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 andThe 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).

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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:

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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.

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(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.)

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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.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Sarmiento, Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

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.

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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).

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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:

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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 transgressesSection 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

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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

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. . . 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.

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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.

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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.

Narvasa, C.J., Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

Bellosillo, J., took no part.

EN BANC

G.R. No. L-3081 October 14, 1949

ANTONIO LACSON, Petitioner, vs. HONORIO ROMERO, ET AL., respondents. Cruz, Puno and Lacson for petitioner.

The respondent Provincial Fiscal in his own behalf.Office of the Solicitor General Felix Bautista Angelo and Assistant Solicitor Inocencio Rosal for respondent Judge.Avena, Villaflores and Lopez for other respondents

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MONTEMAYOR, J.:

Involved in these quo warranto proceedings filed directly with this Court is the Office of Provincial Fiscal of Negros Oriental, and the right to said position as between the petitioner Antonio Lacson and the respondent Honorio Romero.

The facts necessary for the decision in this case may be stated as follows: Petitioner Lacson was on July 25, 1946, appointed by the President of the Philippines, provincial fiscal of Negros Oriental. The appointment was confirmed by the Commission on Appointment on August 6, 1946. He took his oath of office on August 10, 1946, and thereafter performed the duties of that office.

Upon recommendation of the Secretary of Justice, on May 17, 1949, the President nominated petitioner Lacson to the post of provincial fiscal of Tarlac. On the same date, the President nominated for the position of provincial fiscal of Negros Oriental respondent Romero. Both nominations were simultaneously confirmed by the Commission on Appointments on May 19, 1949.

Lacson neither accepted the appointment nor assumed the office of fiscal of Tarlac. But respondent Romero took his oath of office (the post of fiscal of Negros Oriental) in Manila on June 16, 1949, notified the Solicitor General of the fact, and thereafter proceeded to his station. Upon arrival at Dumaguete City, capital of Negros Oriental, he notified Lacson of his intention to take over the office the following day, but Lacson objected. On June 24, 1949, Romero appeared in criminal case No. 4433 before Judge Gregorio S. Narvasa. In said appearance, petitioner Lacson filed his objection and asked that Romero's appearance be stricken from the record. After Romero had exhibited his credentials as required by the court, Judge Narvasa on the same day denied the petition of Lacson and recognized respondent Romero as the provincial fiscal of Negros Oriental. On June 27, 1949, Romero appeared in Special Proceedings No. 630 before Judge Felicisimo Ocampo. Lacson again objected to said appearance but the court overruled his objection. This will explain why Judges Narvasa and Ocampo were made respondents in these quo warranto proceedings.

When petitioner Lacson requested payment of his salary for the period from June 16 to June 23, 1949 as provincial fiscal of Negros Oriental, Angel Paguia, Provincial Auditor and L. J. Alfabeto, Provincial Treasurer turned down his claim and instead paid respondent Romero the salary for the position of provincial fiscal from June 16, 1949, and continued paying it to him periodically up to the present time. Their action was based on a reply given to their query, by the Secretary of Justice to the effect that Romero, was the provincial fiscal of Negros Oriental. This is the reason why the Auditor and the Treasurer of Negros Oriental were likewise made respondents in these proceedings.

The purpose of the present action is to establish the right of the petitioner to the post of provincial fiscal of Negros Oriental and to oust the respondent Romero therefrom. The petition and the memorandum in support thereof among other things contain the following prayer:

(1) Recognizing the right of petitioner Antonio Lacson to hold and occupy the position of provincial fiscal of Negros Oriental;

(2) Declaring the respondent Honorio Romero guilty of usurpation, unlawful holding and exercise of the functions and duties of provincial fiscal of Negros Oriental; ordering the exclusion of said respondent from said office; and ordering him to surrender to herein petitioner all records and papers appertaining to said office that may have come into his possession;

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(3) Ordering respondents provincial treasurer L. J. Alfabeto and provincial auditor Angel Paguia, or their successors in office, to pay herein petitioner his salary commencing June 16, 1949, up to the present time and until herein petitioner shall have legally ceased to be the incumbent of said office; and

(4) Ordering respondent Honoro Romero pay the costs.

Incidentally, and to serve as background in the consideration of this case, it may be stated that when the nominations of Lacson and Romero to the posts of Provincial Fiscal of Tarlac and Negros Oriental, respectively, were made in May, 1949, Negros Oriental was a second class province with a salary of P5,100 per annum for the post of provincial fiscal, while Tarlac was first class simplewith a higher salary of P5,700 per annum for its provincial fiscal. There is therefore reason to believe that the nomination of Lacson to Tarlac or rather his attempted transfer from Negros Oriental to Tarlac was intended and considered as a promotion. At least, there is nothing in the record to show that he was being deliberately eased out of or removed from his post in Negros Oriental. However, the appointments and confirmations, the President raised the province of Negros Oriental to the category of First Class A province with retroactive effect as of January 1, 1949. It is alleged by respondent Romero that after the filing of the present petition, Tarlac was likewise raised to the category of First Class B province on July 15, 1949 so that thereafter the salary for provincial fiscal in both province is the same, namely, P6,000 each. This might be one of the reasons why petitioner to the Province of Tarlac, preferring accept his nomination to the Province of Tarlac, preferring to remain at his old post of provincial fiscal of Negros Oriental.

The determination as to who is entitled to the position of provincial fiscal of Negros Oriental, depends upon the correct answers to several queries such as: (1) Did the Commission on Appointments alone, without his acceptance nomination of Lacson to Tarlac and its confirmation by the thereof create a vacancy in the post of provincial fiscal of Negros Oriental so that Romero could be lawfully appointed to said vacancy? (2) Does the nomination of Lacson to Tarlac and its confirmation by the Commission on Appointments serve as and is equivalent to a removal of Lacson as fiscal of Negros Oriental? If in the affirmative, was that removal and lawful? (3) Could the President who appointed Lacson as provincial fiscal of Negros Oriental remove him at will and without cause, or did the post of provincial fiscal in general have attached to it a tenure of office during which the incumbent may not be removed except for cause?

The appointment to a government post like that of provincial fiscal to be complete involves several steps. First, comes the nomination by the President. Then to make that nomination valid and permanent, the Commission on Appointments of the Legislature has to confirm said nomination. The last step is the acceptance thereof by the appointee by his assumption of office. The first two steps, nomination and confirmation, constitute a mere offer of a post. They are acts of the Executive and Legislative departments of the Government. But the last necessary step to make the appointment complete and effective rests solely with the appointee himself. He may or he may not accept the appointment or nomination. As held in the case of Borromeo vs. Mariano, 41 Phil., 327, "there is no Power in this country which can compel a man to accept an office." Consequently, since Lacson has declined to accept his appointment as provincial fiscal of Tarlac and no one can compel him to do so, then he continues as provincial fiscal of Negros Oriental and no vacancy in said office was created, unless Lacson had been lawfully removed as Such fiscal of Negros Oriental.

As to the second question, it is obvious that the intended transfer of Lacson to Tarlac on the basis of his nomination thereto, if carried out, would be equivalent to a removal from his office in Negros Oriental. To appoint and transfer him from one province to another would mean his removal or separation from the first province. The reason is that a fiscal is appointed for each province (see. 1673, Rev. Adm. Code), and Lacson could not well and legally hold and occupy the two posts of fiscal of Tarlac and Negros Oriental simultaneously. To be fiscal for Tarlac must mean his removal from Negros Oriental.

In the case of Nicolas vs. Alberto, 51 Phil., 370, this Court held that "a transfer of a Justice of the Peace outside of the municipality of which he is appointed is in legal effect a combined removal and appointment." (Decision in this case was reversed by the U. S. Supreme Court [279 U. S., 1411, but on other grounds, leaving the doctrine on transfer and removal undisturbed.) When the transfer is consented to and accepted by the transferees, then there would be no question; but where as in the present case, the transfer is involuntary and objected to, then it is necessary to decide whether the removal is lawful.

What is the nature of the office of provincial fiscal? Is it included in the Civil Service? The answer is, undoubtedly, in the affirmative. Article XII, section 1 of our Constitution provides that "a Civil Service embracing all branches and subdivisions of the Government shall be provided by law." Section 668 of the Administrative Code as amended by Com. Act No. 177, sec. 6, provides that "the Philippine Civil Service shall embrace all branches and subdivisions of the Government;" and section 670 of the same Code provides that "person in the Philippine Civil Service pertain either to the classified or unclassified service." Section 671 of the same code as amended by Commonwealth Act No. 177, section 8 in part provides as follows:

Sec. 671. Person embraced in unclassified. - The following officers and employees constitute the unclassified service:.

(a) A secretary, a sergeant-at-arm, and such other officers as may be required and chosen by the National Assembly in accordance with the Constitution.

(b) 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.

(c) Elective officers.

x x x x x x x x x

From the foregoing, We find that the post of provincial fiscal in the Philippines is included in subsection (b) above-quoted particularly the underlined portion thereof. The law regarding appointment to the post of provincial fiscal is contained in section 66 of the Administrative

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Code which provides that "the Governor-General (now the President) shall appoint among other officials, Secretaries to Departments, Provincial Treasurers, Provincial Fiscals, Register of Deeds, etc." And, Article VII, section 10(3) of the Constitution provides that the President shall nominate and with the consent of the Commission on Appointments shall appoint among other officials, "all other officers of the Government whose appointments are not herein otherwise provided for" which clearly includes the office of provincial fiscal. It is therefore clear that a provincial fiscal who is nominated and appointed by the President with the consent of the Commission on Appointments, as was petitioner Lacson, is, under section 671 (b) above-quoted, included in the unclassified service of the Civil Service.

The next question arises as to whether the President even with the concurrence or consent of the Commission on Appointments may remove a provincial fiscal without cause. The Constitution itself denies said right. Article XII, section 4 of said instrument provides that "no officer or employee in the civil service shall be removed or suspended except for cause as provided by law." This constitutional provision is reproduced word for word in the in the paragraph of sec. 694 of the Rev. Adm. Code, as amended by Commonwealth Act No. 177, section 22.

In order to better appreciate the meaning of this constitutional provision as well as the purpose behind it, it is necessary to delve, though ever so lightly into the framing of this basic instrument. The Committee on Civil Service of the Constitutional Convention which drafted the Constitution in its report and in advocating the merit system in connection with a civil service system among other things stated the following:

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. (Arnego's Framing of the Constitution, Vol. II, p. 886.)

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 1789 by the constitutional right of the 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 belong the spoils" dominated the Federal Government. The system undermined moral values and destroyed administrative efficiency. . . . . (Ibid, p. 886.)

Since the establishment of the American Regime in the Philippines we have enjoyed the benefits of the "merit system." The Schurman Commission advocated in its report that "the greatest care should be taken in the selection of officials for administration. They should be men of the highest character and fitness, and partisan politics should be entirely separated from the government." 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 Provisions. - 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 expect its guarantee as a permanent institution. . . . . (Ibid. p. 887.)

Separations, Suspensions, Demotion, 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 may be taken only after the employee shall have been given a fair hearing. This affords to public employees reasonable security of tenure. (Ibid. p. 890.)

It is contended on of the respondent that the power of removal is inherent in the power to appoint and that consequently, the President had the right to remove the petitioner as provincial fiscal of Negros Oriental and transfer him to Tarlac. Ordinarily, where there is no constitutional limitation the contention of the respondent would be tenable; but where as in the Philippines and as already stated the Constitution forbids the removal of a civil service official or employee like the petitioner except for cause as provided by law, said right of the Chief Executive is qualified and limited. That constitutional prohibition is a limitation to the inherent power of the Executive to remove those civil service officials whom he appoints. This is the reason why we find the American cases cited in support of respondent's theory to be inapplicable. The prohibition against removal except for cause contained in our Constitution has no counterpart in the Federal Constitution of the United States.

Again, it is contended that the provincial fiscal is not appointed for a fixed term and that there is no tenure of office attached to the post. This contention is without merit. As we have already stated, a provincial fiscal as a civil service official may not be removed from office even by the President who appointed him, and even with the consent of the Commission on Appointments, except for cause. Considering this security and protection accorded a provincial fiscal from arbitrary and illegal removal from office, and considering the provisions of section 1673 of the Administrative Code which among other things provides, that "after December 31, 1932 any city fiscal or assistant city fiscal of Manila, provincial fiscal or deputy provincial fiscal over 65 years of age shall vacate his office, the logical inference is that a provincial fiscal duly appointed, until he reaches the age of 65 has the right to continue in office unless sooner removed for cause. In other words, he enjoys tenure of office, which is duly protected by statute and by the Constitution.

The last part of the report of the Committee on Civil Service of the Constitutional Convention which we have reproduced mentions this tenure of office in its last sentence, - "This affords public employees reasonable security or tenure." Speaking of tenure of office of members of the civil service in the Philippines, Professor Sinco in his book on Philippine Political Law has the following to say:

Security of Tenure.

Nothing can be more demoralizing to a group of civil servants than the fear that they might be removed from their posts any time at the pleasure of their superiors. It goes without saying that a demoralized force is an inefficient form Security of tenure is necessary in order to

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obtain efficiency in the civil service. For this purpose the Constitution provides that "no officer or employee in the Civil Service shall be removed or suspended except for cause as provided by law." (Philippine Political Law by Sinco, p. 350.)

In our discussion of the functions of the President, it was there shown that the President's power of removal which is implied from his power of appointment, is very comprehensive and almost unlimited when it affects officers holding purely executive positions. This class of officers, under the rule laid down in the Meyers case, may be removed by the President at practically any time and for any cause. No statutory check, such as a requirement that his order of removal should be subject to the previous consent of the senate or the Commission on Appointments before it could be effective, may be validly placed upon his right to exercise this power. But the provision of the Constitution of the Philippines, which has no counterpart in the Constitution of the United States, makes the tenure of officers and employees in the Civil Service secure even against the President's power of removal and even if the officers should hold purely executive offices. The result is that the scope of the rule established in the Meyers case is considerably modified and reduced when applied in this jurisdiction. It may only apply in case of executive officers appointed by the President and not belonging to the Civil Service as established by the Constitution. (Ibid. pp. 350-351.).

It is also contended by the respondent that neither the Constitution nor the laws passed by the Legislature mention or enumerate the cause or causes for which a civil service official may be removed from office. We find this claim untenable. Section 686 of the Revised Administrative Code, as amended by Commonwealth Act No. 177, section 18 provides that falsification by a civil service official of his daily time record shall render him liable to summary removal and subject him to prosecution as provided by law. A like provision for removal and prosecution is found in section 687 of the same Code, as amended by Commonwealth Act 177, section 19 which deals with political activity and contribution to political fund by civil service employees. Then we have Rule XIII, section 6 of the Civil Service Rules providing thus:

6. Discourtesy to private individuals or to Government officers or employees, drunkenness, gambling, dishonesty, repeated or flagrant violation or neglect of duty, notoriously disgraceful or immoral conduct, physical incapacity due to immoral or vicious habits, incompetency, inefficiency, borrowing money by superior officers from subordinates or lending money by subordinate to superior officers, lending money at exhorbitant rates of interest, willful failure to pay just debts, contracting loans of money or other property from merchants or other persons with whom the bureau of the borrower is in business relations, pecuniary embarrassment arising from reprehensible conduct, the pursuits of private business, vocation, or profession without permission in writing from the chief of the bureau or office in which employed and of the Governor-General (now the President)or proper head of Department, disreputable or dishonest conduct committed prior to entering the service, insubordination, pernicious political activity, offensive political partisanship or conduct prejudicial to the best interest of the service, or the willful violation by any person in the Philippine civil service of any of the provisions of the Revised Civil Service Act or rules, may be considered reasons demanding proceedings to remove for cause, to reduce in class or grade, or to inflict other punishment as provided by law in the discretion of the Governor-General (now the President) or proper head of Department. No chief of a bureau or office shall knowingly continue in the public service any subordinate officer or employee who is inefficient or who is guilty of any of the above-named derelictions, without submitting the facts through the Director to the Governor-General (now the President) or proper head of Department.

The law and civil service rules above referred to clearly provide the causes or some of the causes for removal of civil service officials; and they answer the contention of the respondent on this point.

Section 64 of the Revised Administrative Code, providing for the particular powers and duties of the Governor-General, now the President of the Republic, in part reads as follows:

x x x x x x x x x chanrobles virtual law library

(b) To remove officials from office conformably to law and to declare vacant the offices held by such removed officials. For disloyalty to the United States (now the Philippines), the Governor-General (now the President) may at any time remove a person from any position of trust or authority under the Government of the Philippine Islands.

(c) To order, when in his opinion the good of the public service so requires, an investigation or any action or the conduct of any person in the Government service, and in connection therewith to designate the official, committee, or person by whom such investigation shall be conducted.

x x x x x x x x x

Section 694 of the Administrative Code as amended by Commonwealth Act No. 177, section 22, reads as follows:

Sec. 694. Removal or suspension. - No officer or employee in the civil service shall be removed or suspended except for cause as provided by law.

The President of the Philippines may suspend any chief or assistant chief of a bureau or office, and in the absence of special provision, any other officer appointed by him, pending an investigation of charges against such officer or pending an investigation of his bureau or office. With the approval of the head of department, the chief of a bureau or office may likewise suspend any subordinate or employee in his bureau or under his authority pending an investigation, if the charge against such subordinate or employee involves dishonesty, oppression, or grave misconduct or neglect in the performance of duty.

From the sections above-quoted, the inference is inevitable that before a civil service official or employee can be removed, there must first be an investigation at which he must be given a fair hearing and an opportunity to defend himself. In the case of petitioner Lacson, the record fails to show, neither is there any claim that he has been charged with any violation of law or civil service regulation, much leas investigated and thereafter found guilty so as to authorize or warrant removal from office.

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In view of the foregoing, we are constrained to find and to hold that the transfer of Lacson to Tarlac by his nomination to the post of provincial fiscal of that province was equivalent to and meant his removal as provincial fiscal of Negros Oriental; that said removal was illegal and unlawful for lack of valid cause as provided by law and the Constitution; that the confirmation of the nomination by the Commission on Appointments did not and could not validate the removal, since the Constitution is equally binding on the Legislature; that a provincial fiscal is a civil service official or employee whose tenure of office is protected by the Constitution; and that Antonio Lacson could not be compelled to accept his appointment as provincial fiscal of Tarlac; that having declined said appointment, he continued as provincial fiscal of Negros Oriental; that inasmuch as he neither left, abandoned nor resigned from his post as provincial fiscal of Negros Oriental, there was no vacancy in said post to which the respondent could be legally appointed; and that consequently, the appointment of the respondent was invalid.chanroblesvirtualawlibrary chanrobles virtual law library

In this connection we may point out that the Constitution having clearly limited and qualified the Presidential power of removal in order to protect civil service officials and employees, secure to them a reasonable tenure of office and thus give the country the benefit of an efficient civil service based on the merit system, this Court could do no less than give effect to the plain intent and spirit of the basic law, specially when it is supplemented and given due course by statutes, rules and regulations. To hold that civil service officials hold their office at the will of the appointing power subject to removal or forced transfer at any time, would demoralize and undermine and eventually destroy the whole Civil Service System and structure. The country would then go back to the days of the old Jacksonian Spoils System under which a victorious Chief Executive, after the elections could if so minded, sweep out of office, civil service employees differing in political color or affiliation from him, and sweep in his political followers and adherents, especially those who have given him help, political or otherwise. A Chief Executive running for re-election may even do this before election time not only to embarrass and eliminate his political enemies from office but also to put his followers in power so that with their official influence they could the better help him and his party in the elections. As may be gathered from the report of the Committee of the Constitutional Convention which we have reproduced at the beginning of this opinion, the framers of our Constitution, at least the Civil Service Committee thereof, condemned said spoils system and purposely and deliberately inserted the constitutional prohibition against removal except for cause, which now forms the basis of this decision.

There are hundreds, yea, thousands of young, ambitious people who enter the Civil Service not temporarily or as a makeshift, but to make a career out of it. They give the best years of their lives to the service in the hope and expectation that with faithful service, loyalty and some talent, they may eventually attain the upper reaches and levels of official hierarchy.

To permit circumvention of the constitutional prohibition in question by allowing removal from office without lawful cause, in the form or guise of transfers from one office to another, or from one province to another, without the consent of the transferee, would blast the hopes of these young civil service officials and career men and women, destroy their security and tenure of office and make for a subservient, discontented and inefficient civil service force that sways with every political wind that blows and plays up to whatever political party is in the saddle. That would be far from what the framers of our Constitution contemplated and desired. Neither would that be our concept of a free and efficient Government force, possessed of self-respect and reasonable ambition.

Incidentally, it happens that the petitioner is one of those we had in mind as making a career of the Government service. He claims and it is not denied by the respondent, that twenty years ago he entered the service of the Government as register of deeds of Negros Oriental, then was promoted to the post of fiscal, first of the Province of Palawan, then of Surigao, later of Antique and lastly of Negros Oriental in 1946. He does not want to accept the transfer to the Province of Tarlac. His only alternative would be to resign, sacrifice his twenty years of continuous, faithful service and his career, and perchance his hope that some day, he might yet be promoted to the judiciary. Not a very bright prospect or picture, not only to him but to other civil service officials in like circumstance.

But in justice to the President and the Commission on Appointments, let it be stated once again that it would seem that the transfer of the petitioner to Tarlac was not meant and intended as a punishment, a disciplinary measure or demotion. It was really a promotion, at least at the time the appointment was made. Only, that later, due to a change in the category of Oriental Negros as a province, the transfer was no longer a promotion in salary. And yet the respondent and the Solicitor General insisted in the transfer despite the refusal of the petitioner to accept his new appointment.

In conclusion, we find and declare the petitioner to be the provincial fiscal of Negros Oriental, and the respondent not being entitled to said post, is hereby ordered to surrender to the petitioner all the records or papers appertaining to said office that may have come into his possession. The respondent provincial auditor and provincial treasurer, are hereby ordered to pay to the herein petitioner his salary from June 16, 1949, and as long as said petitioner continues to be the legal incumbent to the office in question. Considering that the respondent appears to have acted in good faith and relied upon his nomination by the President and the confirmation thereof by the Commission on Appointments, as well as the position taken by the Solicitor-General, who sustained his appointment, we make no pronouncement as to costs.

Ozaeta, Paras, Feria, Bengzon, Tuason and Torres, JJ., concur.Reyes, J., concurs in the result.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 110598 December 1, 1994

Public Officers and Election Laws 155

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. 2Forthwith, private respondent took her oath of office and assumed the duties and functions of DMO II.

On 12 August 1991, petitioner reiterated her protest. 3The 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.chanroblesvirtualawlibrary chanrobles virtual law library

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 thenewly-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

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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. 8Without 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. 9Until 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, 11this 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 12in 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, theseparation 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. 14There 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.

Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and Mendoza, JJ., concur.

Feliciano, J., is on leave.

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Republic of the PhilippinesSUPREME COURTManila

FIRST DIVISION

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;

Public Officers and Election Laws 158

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. ...

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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 policenotwithstanding 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.

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Relova, JJ., concur.

THIRD DIVISION

[G.R. No. 114795. July 17, 1996]

Public Officers and Election Laws 160

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.:

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 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.” (Italics supplied)

The above organic provision did not require any cause for removal of an appointive official under the 1973 Constitution. [16] The transition period from the old to the new Constitution envisioned an “automatic” vacancy; [17] hence the government is not hard put to prove anything plainly and simply because the Constitution allows it. [18] Mere appointment and qualification of the successor removes an incumbent from his post. Nevertheless, the government in an act of auto-limitation and to prevent indiscriminate dismissal of government personnel issued on May 28, 1986, Executive Order (E.O.) No. 17. This executive order, which applies in this case as it was passed prior to the issuance of Concepcion’s transfer order, enumerates five grounds for separation or replacement of elective and appointive officials authorized under Article III, Section 2 of the Provisional Constitution, to wit:

“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, 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

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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 therefore, 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.[27]

Garces’ heavy reliance with the 1964 Tulawie[28] case is misplaced for material and different factual considerations. Unlike in this case, the disputed office of “Assistant Provincial Agriculturist” in the case of Tulawie is clearly vacant and petitioner Tulawie’s appointment was confirmed by the higher authorities making his claim to the disputed position clear and certain. Tulawie’s petition for mandamus, moreover, was against the Provincial Agriculturist who never claimed title to the contested office. In this case, there was no vacancy in the Gutalac post and petitioner’s appointment to which she could base her claim was revoked making her claim uncertain.

Coming now to the second issue.

The jurisdiction of the RTC was challenged by respondent Empeynado[29] contending that this is a “case” or “matter” cognizable by the COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution cancelling the appointment of Garces as Election Registrar of Gutalac, he argues, should be raised only on certiorari before the Supreme Court and not before the RTC, else the latter court becomes a reviewer of an en banc COMELEC resolution contrary to Sec. 7, Art. IX-A.

The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:

“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 itsadjudicatory 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 of any court, tribunal, person or body exercising judicial or quasi-judicial functions.”[33]

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

SO ORDERED.

Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 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:

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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." 2On 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)

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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. 12That 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.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Melencio-Herrera, Alampay, Gutierrez, Jr., and Paras, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

EN BANC

G.R. No. 96298 May 14, 1991

RENATO M. LAPINID, Petitioner, vs. CIVIL SERVICE COMMISSION, PHILIPPINE PORTS AUTHORITY and JUANITO JUNSAY,Respondents.

CRUZ, J.:

The issue raised in this case has been categorically resolved in a long line of cases that should have since guided the policies and actions of the respondent Civil Service Commission. Disregard of our consistent ruling on this matter has needlessly imposed on the valuable time of the Court and indeed borders on disrespect for the highest tribunal. We state at the outset that this conduct can no longer be countenanced.

Petitioner Renato M. Lapinid was appointed by the Philippine Ports Authority to the position of Terminal Supervisor at the Manila International Container Terminal on October 1, 1988. This appointment was protested on December 15, 1988, by private respondent Juanito Junsay, who reiterated his earlier representations with the Appeals Board of the PPA on May 9, 1988, for a review of the decision of the Placement Committee dated May 3, 1988. He contended that he should be designated terminal supervisor, or to any other comparable position, in view of his preferential right thereto. On June 26, 1989, complaining that the PPA had not acted on his protest, Junsay went to the Civil Service Commission and challenged Lapinid's appointment on the same grounds he had earlier raised before the PPA. In a resolution dated February 14, 1990, the Commission disposed as follows:

After a careful review of the records of the case, the Commission finds the appeal meritorious. In the comparative evaluation sheets, the parties were evaluated according to the following criteria, namely: eligibility; education; work experience; productivity/performance/ attendance; integrity; initiative/leadership; and physical characteristics/personality traits. The results of the evaluation are as follows:

JUNSAY, Juanito - 79.5

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VILLEGAS, Benjamin - 79

LAPINID, Renato - 75

DULFO, Antonio - 78

MARIANO, Eleuterio - 79

FLORES, Nestor - 80

DE GUZMAN, Alfonso - 80

VER, Cesar - 80

It is thus obvious that Protestants Junsay (79.5) and Villegas (79) have an edge over that of protestees Lapinid (75) and Dulfo (78).

Foregoing premises considered, it is directed that Appellants Juanito Junsay and Benjamin Villegas be appointed as Terminal Supervisor (SG 18) vice protestees Renato Lapinid and Antonio Dulfo respectively who may be considered for appointment to any position commensurate and suitable to their qualifications, and that the Commission be notified within ten (10) days of the implementation hereof.

SO ORDERED.

Upon learning of the said resolution, Lapinid, 7who claimed he had not been informed of the appeal and had not been heard thereon, filed a motion for reconsideration on March 19, 1990. This was denied on May 25, 1990. The Philippine Ports Authority also filed its own motion for reconsideration on June 19, 1990, which was denied on August 17, 1990. A second motion for reconsideration filed on September 14, 1990, based on the re-appreciation of Lapinid's rating from 75% to 84%, was also denied on October 19, 1990.

When the petitioner came to this Court on December 13, 1990, we resolved to require Comments from the respondents and in the meantime issued a temporary restraining order. The Solicitor General took a stand against the Civil Service Commission which, at his suggestion, was allowed to file its own Comment. The petitioner filed a Reply. The private respondent's Comment was dispensed with when it was not filed within the prescribed period.

We see no reason to deviate from our consistent ruling on the issue before us.

In Luego v. Civil Service Commission, 1 this Court declared:

The issue is starkly simple: Is the Civil Service Commission authorized to disapprove a permanent appointment on the ground that another person is better qualified than the appointee and, on the basis of this finding, order his replacement by the latter?

xxx xxx xxx

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.

xxx xxx xxx

Significantly, the Commission on Civil Service acknowledged that both the petitioner and the private respondent were qualified for the position in controversy. 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.

The same ruling has been affirmed, in practically the same language as Luego, in Central Bank v. Civil Service Commission, 171 SCRA 744; Santiago v. Civil Service Commission, 178 SCRA 733; Pintor v. Tan, G.R. No. 84022 and G.R. No. 85804, March 9, 1989,En Banc, Minute Resolution; Galura v. Civil Service Commission, G.R. No. 85812, June 1, 1989, En Banc, Minute Resolution; Zulueta v. Mamangun, G.R. No. 85941, June 15, 1989, En Banc, Minute Resolution; Remigio v. Chairman, Civil Service Commission, G.R. No. 86324, July 6, 1989, En Banc, Minute Resolution; Aurora Macacua v. Civil Service Commission, G.R. No. 91520, July 31, 1990, En Banc, Minute Resolution; Abdulwahab A. Bayao v. Civil Service Commission, G.R. No. 92388, September 11, 1990, En Banc, Minute Resolution; Orbos v. Civil Service Commission, G.R. No. 92561, September 12, 1990; Alicia D. Tagaro v. The Hon. Civil Service Commission, et al., G.R. No. 90477, September 13, 1990, En Banc, Minute Resolution; Elenito Lim v. Civil Service Commission, et al., G.R. No. 87145, October 11, 1990, En Banc, Minute Resolution; Teologo v. Civil Service Commission, G.R. No. 92103, November 8, 1990; Simpao v. Civil Service Commission, G.R. No. 85976, November 15, 1990.

Only recently, in Gaspar v. Court of Appeals 2 this Court said:

Public Officers and Election Laws 165

The only function of the Civil Service Commission in cases of this nature, according to Luego, is to review the appointment in the light of the requirements of the Civil Service Law, and when it finds the appointee to be qualified and all other legal requirements have been otherwise satisfied, it has no choice but to attest to the appointment. Luego finally points out that the recognition by the Commission that both the appointee and the protestant are qualified for the position in controversy renders itfunctus officio in the case and prevents it from acting further thereon except to affirm the validity of the former's appointment; it has no authority to revoke the appointment simply because it considers another employee to be better qualified for that would constitute an encroachment on the discretion vested in the appointing authority.

xxx xxx xxx

The determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the Department Head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, etc., may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests, of the service. Given the demands of a certain job, who can do it best should be left to the Head of the Office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the Head of Office in this regard.

It is therefore incomprehensible to the Court why, despite these definitive pronouncements, the Civil Service Commission has seen fit to ignore, if not defy, the clear mandate of the Court.

We declare once again, and let us hope for the last time, that the Civil Service Commission has no power of appointment except over its own personnel. Neither does it have the authority to review the appointments made by other offices except only to ascertain if the appointee possesses the required qualifications. The determination of who among aspirants with the minimum statutory qualifications should be preferred belongs to the appointing authority and not the Civil Service Commission. It cannot disallow an appointment because it believes another person is better qualified and much less can it direct the appointment of its own choice.

Appointment is a highly discretionary act that even this Court cannot compel. While the act of appointment may in proper cases be the subject of mandamus, the selection itself of the appointee-taking into account the totality of his qualifications, including those abstract qualities that define his personality-is the prerogative of the appointing authority. This is a matter addressed only to the discretion of the appointing authority. It is a political question that the Civil Service Commission has no power to review under the Constitution and the applicable laws.

Commenting on the limits of the powers of the public respondent, Luego declared:

It is understandable if one is likely to be misled by the language of Section 9(h) of Article V of the Civil Service Decree because it says the Commission has the power to "approve" and "disapprove" appointments. Thus, it is provided therein that the Commission shall 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.

The Court believes it has stated the foregoing doctrine clearly enough, and often enough, for the Civil Service Commission not to understand them. The bench does; the bar does; and we see no reason why the Civil Service Commission does not. If it will not, then that is an entirely different matter and shall be treated accordingly.

We note with stern disapproval that the Civil Service Commission has once again directed the appointment of its own choice in the case at bar. We must therefore make the following injunctions which the Commission must note well and follow strictly.

Whatever the reasons for its conduct, the Civil Service Commission is ORDERED to desist from disregarding the doctrine announced in Luego v. Civil Service Commission and the subsequent decisions reiterating such ruling. Up to this point, the Court has leniently regarded the attitude of the public respondent on this matter as imputable to a lack of comprehension and not to intentional intransigence. But we are no longer disposed to indulge that fiction. Henceforth, departure from the mandate of Luego by the Civil Service Commission after the date of the promulgation of this decision shall be considered contempt of this Court and shall be dealt with severely, in view especially of the status of the contemner.

While we appreciate the fact that the Commission is a constitutional body, we must stress, as a necessary reminder, that every department and office in the Republic must know its place in the scheme of the Constitution. The Civil Service Commission should recognize that its acts are subject to reversal by this Court, which expects full compliance with its decisions even if the Commission may not agree with them.

The Commission on Civil Service has been duly warned. Henceforth, it disobeys at its peril.

Public Officers and Election Laws 166

WHEREFORE, the petition is GRANTED. The Resolutions of the respondent Civil Service Commission dated February 14, 1990, May 25, 1990, August 17, 1990, and October 19, 1990, are REVERSED and SET ASIDE. The temporary restraining order dated December 13, 1990, is made PERMANENT. No costs.

SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

SECOND DIVSION

G.R. No. 126337. February 12, 1998

FELIX P. UY, Petitioner, vs. COURT OF APPEALS, THE CIVIL SERVICE COMMISSION and ARTURO T. MILLANA, Respondent.

D E C I S I O N

MARTINEZ, J.:

This is a petition for review on certiorari filed by Engineer Felix P. Uy from the decision of the Court of Appeals dated July 10, l9961 which affirmed the decision of the Civil Service Commission.2

The facts which gave rise to the instant petition are as follows:

On September 27, l982, petitioner was promoted by then Governor Valentina G. Plaza as Supervising Mechanical Engineer, Equipment Pool Division, Provincial Engineering Office of Agusan del Sur.3

On February 26, l988, then Governor Ceferino Paredes, issued Administrative Order No. 88-01 scaling down the operations of the Provincial Engineering Office (PEO for brevity) by reducing the number of its personnel. Sixty-two employees of the PEO, including petitioner were affected by this order.

On May 11, l988, petitioner received his notice of termination effective on May 16, l988 signed by Governor Ceferino Paredes.4However, private respondent who holds the position of Mechanical Engineer5 (a position two (2) steps below that of petitioner) was retained by Governor Paredes.

Thereafter, petitioner and the sixty-one (61) other dismissed employees, filed a complaint/ petition before the Merit System Protection Board (MSPB for brevity), Civil Service Commission, assailing the legality of their termination from office.

While the petition was pending before the MSPB, Governor Paredes reorganized the Equipment Pool Division, PEO and renamed the same as Motor Pool Division, PEO. He abolished the position of Supervising Mechanical Engineer and upgraded instead the next ranking position, Senior Mechanical Engineer as the Chief of Division.6 Thereafter, he appointed private respondent to the said position while designating another, Engineer Carlito Capol, to the position of Mechanical Engineer left vacant by private respondent.7

On July 1, l989, Republic Act 6758, otherwise known as the Salary Standardization Law (SSL for brevity) took effect. The positions at the PEO, Motor Pool Division were reclassified: the Chief, Motor Pool Division was designated as Head Mechanical Engineer with the equivalent rank of Engineer IV; Supervising Mechanical Engineer (previously abolished by Governor Paredes) as Engineer III; and Senior Mechanical Engineer as Engineer II. Private respondent being the current Chief, Motor Pool Division, was designated by Governor Paredes to the position of Head Mechanical Engineer. On January 29, l993, the Merit System Protection Board, Civil Service Commission, rendered its decision in MSPB Case No. 91-1739 declaring petitioners termination from the service including that of the other employees assigned with the PEO illegal. The dispositive portion thereof reads, to wit;

WHEREFORE, in the light of the foregoing, the board finds the petition of Emmie Hurbada, et al., meritorious. Accordingly, the Petitioners who were illegally separated are hereby ordered reinstated.8

On May 24, l993, the petitioners in MSPB Case No. 91-1739 filed a motion praying for the Board to issue an order directing the Provincial Governor of Agusan del Sur ( who was then Governor Democrito Plaza) to reinstate petitioners in the service and to declare invalid the appointments of personnel who were then appointed by Governor Paredes in their respective positions.9

On June 24, l993, the MSPB issued an order directing the Provincial Governor of Agusan del Sur to immediately implement the subject decision in the interest of justice.10

Public Officers and Election Laws 167

On August 27, l993, Governor Plaza issued Memorandum Order No. 028-92 reinstating petitioner to the Provincial Engineering Office, Motor Pool Division as Engineer IV while revoking that of private respondent. On September 1, l993, petitioners appointment as Engineer IV was issued by the said governor.11

For failure of Governor Plaza to reinstate the rest of the petitioners despite the issuance of several orders by MSPB, the case was elevated to the Civil Service Commission (CSC for brevity).12

On March 21, l994, the CSC issued Resolution No. 94-1567 declaring MSPB order dated January 29, l993 final and executory and formally charging Governor Plaza with indirect contempt pursuant to the provisions of the l987 Administrative Code for continued refusal to reinstate the other petitioners in MSPB case No. 91-1739.13

Private respondent raised the legality of the order of Governor Plaza terminating his services as Engineer IV, Motor Pool Division before the CSC. On March 21, 1995, the CSC issued Resolution No. 95-2104, the dispositive portion of which reads, to wit:

WHEREFORE, the appeal of Arturo Millana is hereby granted. Accordingly, the Provincial Government of Agusan del Sur is directed to cause the reinstatement of Arturo J. Millana to the position of Engineer IV. He is entitled to the payment of back salaries and other benefits for the period that he had been out of the service. Felix P. Uy should be reinstated to a position comparable with that which he was holding at the time of his illegal termination.14

Governor Plaza and petitioner herein filed their separate motions for reconsideration15 but the same were denied by the CSC in its Resolution No. 955591 dated September 5, l995, the dispositive portion of which reads, to wit:

WHEREFORE, the instant Motions for Reconsideration of Governor Democrito O. Plaza and Engineer Felix P. Uy are hereby dismissed. Accordingly, CSC Resolution No. 95-2104 dated 21 March 1995 stands and the Provincial Government of Agusan del Sur is directed to implement the same immediately."16

On November 17, l995, petitioner filed a petition for review before the respondent court assigning two errors committed by the respondent CSC:17

(l) that public respondent erred in ruling as improper his reinstatement as Engineer IV in the provincial engineering office of the province of Agusan del Sur and by directing that he be reinstated to a position comparable with that he was holding at the time of his dismissal;

(2) that public respondent erred and failed to appreciate the fact that his former Supervising Mechanical Engineer position which was abolished and replaced with a Senior Mechanical Engineer and later classified as Engineer IV pursuant to RA 6758 are the same and similar positions provided for in the plantilla of personnel, Provincial Engineering Office, province of Agusan del Sur.

On July 10, l996, the respondent court rendered its decision denying the petition for lack of merit.18 It ruled that petitioner did not question the qualification of Millana to the contested position and that the position of private respondent at the time of his termination, Engineer IV, could not be that which was previously occupied by the petitioner, which was Supervising Mechanical Engineer or Engineer III. The respondent court further stressed that an appointment whether to a vacancy or to a newly created position is essentially within the discretionary power of whomsoever it is vested. A copy of the said decision was received by petitioners counsel on July 17, l996.

On July 26, l996, petitioners counsel filed a motion for extension of time to file a motion for reconsideration which was denied by the respondent court in its Resolution dated August 7, l996. The order likewise declared the finality of the decision of the respondent court.

On August 20, l996, petitioners counsel filed his motion for reconsideration19 which was later denied by the respondent court in its Resolution dated September 4, l996.20

Hence, this petition.

Petitioner reiterated the assigned errors in his petition for review before the respondent court in addition to the claim that the said court erred in applying the rulings of this Court in Panis vs. CSC, 229 SCRA 509(1994); Mendilla vs. CSC; Central Bank vs.CSC; Rimonte vs. CSC, and Lapinid vs. CSC.

Public respondent, on the other hand, maintains that the issue left for this court to consider is whether or nor petitioners motion for reconsideration was filed before the Court of Appeals within the reglementary period. It argued that the respondent court acted correctly in denying petitioners motion for reconsideration for having been filed out of time, citing the rulings of this court in Habaluyas Enterprises v. Japzon; Lacsamana v. Second Special Cases Division of the Intermediate Appellate Court; Rolloque v.Court of Appeals; and Caltex (Phil), Inc. v. Intermediate Appellate Court. It also added that the respondent court acted correctly in upholding the CSCc ruling that petitioner may not be reinstated to the new position of Engineer IV at the expense of Millana who enjoys the status of a permanent employee and is entitled to security of tenure.

We find for the respondent.

The failure of a party to perfect his appeal in the manner and within the period fixed by law renders the decision sought to be appealed final, with the result that no court can exercise appellate jurisdiction to review the decision. For it is more important that a case be settled than it be settled right. It is only in exceptional cases when we have allowed a relaxation of the rules governing the periods of appeal.21

Public Officers and Election Laws 168

A careful perusal of this case reveals that the decision of the respondent court had become final and executory due to the failure of petitioner to file his motion for reconsideration within the reglementary period. Since petitioners counsel received a copy of the decision on July 17, l996, the aforesaid motion should have been filed not later than August 1, l996. Petitioners filing of a motion for extension of time to file a motion for reconsideration on July 26, l996 and the motion for reconsideration only on August 20, l996, was a procedural lapse fatal to his cause.

Not only was the said motion for extension of time to file a motion for reconsideration declared prohibited by several rulings of this Court but the Interim Rules of the respondent court likewise provides that the period for filing a motion for reconsideration is non-extendible.22 The denial of aforesaid motions by the respondent court is therefore correct. In fact, the filing of said motion for extension of time to file a motion for reconsideration did not suspend/toll the running of the reglementary period which in effect renders the assailed decision final and beyond the jurisdiction of this court

This Court has ruled as early as 1986 in the case of Habaluyas Enterprises v. Japzon23 and reiterated in Lacsamana v. Second Special Cases Division of the Intermediate Appellate Court24 that no motion for extension of time to file a motion for new trial or reconsideration may be filed with the Metropolitan or Municipal Trial Courts, the Regional Trial Courts, and the Intermediate Appellate Court. In fact, the court has time and again consistently upheld strict adherence to aforesaid rule.25 In Rolloque, et al., vs. CA, et al., this Court said:

The filing by petitioners of a motion for extension of time to file motion for reconsideration did not toll the fifteen (15) days period before a judgment becomes final and executory.

Since the decision of respondent Court of Appeals dated November 28, 1986 has long become final and executory at the time of the filing of this petition, this Court can no longer alter or modify the same.26

We find no reason for counsel of petitioner to be unaware of the aforesaid rulings of this court. As counsel for petitioner, he failed to observe the responsibility imposed on him as a member of the bar to keep abreast with the latest developments of the law.27 Counsels failure or negligence cannot be sanctioned considering that it has been ten (10) years since the decision in the Habaluyas case and reiterated in subsequent cases was promulgated. Indeed, negligence or mistake of counsel necessarily binds the client.28

Moreover, a review of the decision of the respondent court will show that no reversible error has been made. As aptly observed by that court:

The Civil Service Commission did not deny petitioners right to be reinstated to his former position but only declared as improper the manner by which his reinstatement was effected.

x x x

Petitioner did not question the qualifications of Millana to the contested position. It is so because an appointment whether to a vacancy or to a newly created position is essentially within the discretionary power of whomsoever it is vested, (Panis v. Civil Service Commission, 227 SCRA 509 [1994]). Once a candidate possesses the minimum qualities required by law, sufficient discretion, if not plenary, is granted to the appointing authority (Mendenilla v. Civil Service Commission, 194 SCRA 278 [1991], Central Bank v. Civil Service Commission, 171 SCRA 744 [1989]).

While the choice of an appointee from among those who possess the required qualification is a political and administrative decision (Rimonte v. Civil Service Commission, 244 SCRA 498 [1995]), such discretion cannot be exercised arbitrarily to remove a permanent employee occupying the position without violating (the) latters right to security of tenure. It is a settled rule that the Civil Service Commission has no authority to revoke an appointment simply because it considers another employee to be better qualified for that would constitute an encroachment on the discretion vested in the appointing authority (Lapinid v. Civil Service Commission, 197 SCRA 106 [1991]).

The argument that petitioner should have been the one appointed because he was next in rank to the contested position cannot be upheld.29

In passing, the Court would like to reiterate the time-honored doctrine that factual findings of administrative bodies should be accorded not only respect but even finality as they are supported by substantial evidence even if not overwhelming or preponderant30 or that administrative agencies which have acquired expertise because their jurisdiction is confined to specific matters.31 Considering the factual and legal precedents in the case at bar, the petition must be denied.

WHEREFORE, IN VIEW OF THE FOREGOING, finding no reversible error in the decision of the respondent court, the petition is hereby DENIED for lack of merit.

SO ORDERED.

Regalado, (Chairman), Melo, Puno, and Mendoza, JJ., concur.

Republic of the PhilippinesSUPREME COURTManila

Public Officers and Election Laws 169

EN BANC

G.R. No. 85479 March 3, 1992

PERFECTO ESPAÑOL, Petitioner, vs. THE HON. CIVIL SERVICE COMMISSION, HON. FEDERICO N. ALDAY, JR., in his capacity as ADMINISTRATOR, NATIONAL IRRIGATION ADMINISTRATION; and ORLANDO L. BULSECO, Respondents.

REGALADO, J.:

In this special civil action for certiorari, petitioner seeks the reversal of Resolution No. 88-755, 1 issued by public respondent Civil Service Commission in September 21, 1988 in MSPB Case No. 1564, which reversed the decision of the Merit Systems Protection Board and confirmed the appointment of private respondent Orlando L. Bulseco.

In September, 1986, the position of Regional Manager of the National Irrigation Administration, Regional Office No. 2, Cauayan, Isabela, became vacant. At that time, petitioner Perfecto Español was Chief of the Engineering Division, while private respondent Orlando L. Bulseco was Chief Design Engineer. In the organizational chart of the National Irrigation Administration (NIA), the position of Chief Design Engineer is below the Chief of the Engineering Division, and the latter is considered next-in-rank to the position of Regional Manager.

Private respondent Bulseco was appointed to the vacant position of Regional Manager effective October 1, 1986, pursuant to Resolution No. 5302-86 which was passed by the Board of Directors of NIA. As a consequence, petitioner Español filed a letter protest 2 with the Merit Systems Protection Board (MSPB), alleging that petitioner is the employee next-in-rank to the position of Regional Manager and, as such, he has promotional priority over Bulseco. MSPB referred the protest to the NIA Administrator for appropriate action. The protest was dismissed by the NIA Administrator for lack of merit on the ground that "in the evaluation conducted, Mr. Bulseco has advantage over Mr. Español on the factors of performance and potential." 3

Petitioner appealed the dismissal of his protest to the MSPB. As a result of the evaluation made on the qualifications of Español and Bulseco, taking into consideration such factors as educational attainment, experience, eligibility and training, the MSPB ruled that the individual qualifications of the contestants exceed the qualification requirements, especially those of respondent Bulseco. However, by virtue of petitioner's ranking in the organizational chart of NIA and pursuant to the provisions of Sections 2 and 4 of Resolution No. 83-343 (Rules on Promotion) of the Civil Service Commission, the MSPB "directed that Engr. Perfecto C. Español be appointed instead to the position of Regional Manager, NIA Regional Office No. 2." 4

Thereafter, respondent Bulseco appealed to the Civil Service Commission (CSC). In reversing the decision of the MSPB, thereby sustaining the appointment of private respondent, the CSC held in its Resolution No. 88-755 of September 21, 1988 that:

. . . the Commission finds that prior to Bulseco's appointment as Regional Manager of NIA, Region 2, he was appointed Project Manager of the Chico River Project in Tabuk, Kalinga-Apayao under a permanent status in September, 1979. Notably, the position is of job level 22, as compared to that of a Division Manager (level 20) and Regional Manager (level 23). At that time protestant Español was already a Chief Regional Engineer (now Division Manager) of Region 2, a position with job level 20. However, in that same year Bulseco accepted an offer for a position of Irrigation Consultant in Indonesia, prompting him to resign from his position as Project Manager. When Bulseco came back from abroad in 1981, he was offered the only available, position of Chief Design Engineer of NIA, Region 2. This is a clear demotion but he accepted the same with an assurance from the NIA Administrator that he would soon be promoted to a higher position in the Region. Shortly thereafter, or on October 8, 1981, he was assigned as Acting Provincial Irrigation Manager (PIM) for the province of Cagayan. This position is of a job level 20. On October 16, 1983, he was designated Coordinator of the National Irrigation Systems Improvement Project (NISIP), a foreign-assisted Project, at Abulug-Apayao. This position is again of job level 20.

Thus we find merit as to Español's contention that Bulseco was under him because insofar as actual plantilla position is concerned,. the position of Bulseco is still Chief Design Engineer, a position really under Español. However Bulseco, because of his designations, performed the duties and functions appurtenant to that of PIM and Coordinator of NISIP which positions are of equal and next-in-rank, respectively, to the contested position. So that prior to his appointment to the contested position, he was actually the Coordinator of NISIP.

On the other hand, the Organizational Chart of NIA shows that there are six (6) next-in-rank positions to the contested position of Regional Manager and that, all these are held by other employees, including Mr. Español.

On the third ground, we take notice (of) that portion of the MSPB decision which states:

From the above comparative data, it is evident that both contestants meet the qualification requirements for the position. In fact their individual qualifications exceed those requirements especially that (sic) of Engr. Bulseco.

Without further delving into the detailed comparative qualifications of the contestants, the Commission considers this an indication or an admission that Engr. Bulseco indeed possesses superior qualifications than Español, not discounting his relevant experience abroad. It is shown, however, that the MSPB accorded more weight to the finding that Español is the one next-in-rank to the contested position and pursuant to Section 4. of CSC Resolution No. 83-343, which states:

Section 4. An employee who holds a next-in-rank position who is deemed the most competent and qualified . . . shall be promoted to the position when it becomes vacant.

Public Officers and Election Laws 170

Español has an edge and promotional priority over Enqr. Bulseco. But granting arguendo that Bulseco is not really the person next-in-rank, the MSPB seems to have missed the second paragraph of the same section which provides:

However, the appointing authority may promote an employee not next-in-rank who possesses superior qualification and competence compared to a next-in-rank.

This Commission, in several occasions, resolved the issue in favor of employees who were not next-in-rank but were promoted to the contested position. In the case of Corpuz vs. Lopez, Jr., March 1, 1982, the then Commission ruled that:

Although both may be considered for promotion and that the next-in-rank should be given preference for promotion, the appointing authority may appoint an employee who is not next-in-rank so as to choose only the most competent and best qualified for the position.

xxx xxx xxx

WHEREFORE, foregoing premises considered, this Commission resolved to find as it hereby finds the appeal meritorious. Accordingly, the decision of MSPB dated April 14, 1988 is therefore set aside and the appointment of Orlando L. Bulseco as Regional Manager, Cauayan, Isabela, is thus confirmed. 5

Hence, this petition.

At the outset, we affirm the fact that the CSC acted correctly in reversing the decision of the MSPB and in confirming the appointment of private respondent Bulseco as Regional Manager. We shall here rule on the merits of the petition of Español who insists that the MSPB did not err in setting aside the appointment made by the NIA Administrator.

Section 19, paragraph 6, Article VIII of Presidential Decree No. 807 defines a qualified next-in-rank as an employee appointed on a permanent basis to a position previously determined to be next-in-rank to the vacancy proposed to be filled and who meets the requisites for appointment thereto as previously determined by the appointing authority and approved by the respondent commission.

Pursuant to. the provisions of Section 9(b) and Section 19 of Presidential Decree No. 807, the CSC promulgated Resolution No. 83-343 (Rules on Promotion); Sections 2 and 4 of which provide:

Sec. 2. Whenever a position in the first level becomes vacant, the employees in the ministry or agency who occupy positions deemed to be next-in-rank to the vacancy, shall be considered for promotion. In the second level, those employees in the government service who occupy next-in-rank position shall be considered for promotion to the vacancy.

Sec. 4. An employee who holds a next-in-rank position who is deemed the most competent and qualified, possesses an appropriate civil service eligibility, and, meets the other conditions for promotion shall be promoted to the higher position when it becomes vacant.

However, the appointing authority may promote an employee who is not next-in-rank but, who possesses superior qualifications and competence compared to a next-in-rank employee who merely meets the requirements for the position. 6

Petitioner contends that on the basis of the organizational chart 7 of the NIA, be is considered as next-in-rank to the contested position and, therefore, he has a promotional priority over respondent Bulseco. He likewise claims that assuming that the second paragraph of Section 4 of Resolution No. 83-343 provides an exception to the next-in-rank rule, the same shall apply only when the person who is next-in-rank merely meets the minimum requirements, but not where, as in the case of herein petitioner, the qualifications of the next-in-rank far exceed the requirements for appointment to the contested position. In other words, petitioner is of the opinion that one who is not next-in-rank, may be promoted only if the next-in-rank merely meets the minimum requirements for the position. However, where the qualifications of the next-in-rank exceeds the minimum requirements, it is mandatory that the next-in-rank be promoted to the position.

The contention is devoid of merit.

Fundamental is the rule that appointment is an essentially discretionary power and must be performed by the officer in whom it is vested according to his best lights, the only condition being that the appointee shall 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. 8

Consequently; it was further held that where respondent commission has acknowledged that both the petitioner and the private respondent were qualified for the contested position that recognition alone rendered it functus officio in the case and prevented it from acting further thereon except to affirm the validity of the appointment made by the head of the office.

In the case at bar, there is no dispute that both petitioner Español and private respondent Bulseco exceed the qualification standards for appointment to the position of Regional Manager. It is likewise not denied that, as originally found by the Administrator, respondent Bulseco is more qualified than petitioner. The fact alone that both contestants meet the minimum qualifications required by law should have restrained MSPB from acting on, much less in granting, the appeal of herein petitioner except, of course, to affirm the appointment of private respondent. Unfortunately, the MSPB opted to disregard the choice made by the appointing authority and appointed herein petitioner instead, invoking therein the next-in-rank rule provided for under Section 19 of Presidential Decree No.807, as well as Sections 2 and 4 of CSC Resolution No. 83-343.

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In the case of Taduran vs. Civil Service Commission, et al, 9 this Court had the opportunity to pass upon the extent of the applicability of the next-in-rank rule. The pertinent provisions of Presidential Decree No. 807 state:

Sec. 19. Recruitment and Selection of Employees..----

xxx xxx xxx

(3) When a vacancy occurs in a position in the second level of the Career Service as defined in Section 7, the employees in the government service who occupy the next lower positions in the occupational group under which the vacant position is classified and in other functionally related occupational groups and who are competent, qualified and with the appropriate civil service eligibility shall be considered for promotion.

xxx xxx xxx

(5) If the vacancy.is not filled by promotion as provided herein the same shall be filled by transfer of present employees in the government service, by reinstatement, by re-employment of persons separated through reduction in force, or by appointment of persons with the civil service eligibility appropriate to the positions.

xxx xxx xxx

(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: . . .

which Taduran interpreted in this wise:

We find no mandatory nor peremptory requirement in the foregoing provision that persons next-in-rank are entitled to preference in appointment. What it does provide is that they would be among the first to be considered for the vacancy if qualified, and if the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of apppointment. . . .

In Medenilla vs. Civil Service Commission et al., 10 this Court went further by holding that the next-in-rank rule may be disregarded even in case of promotions. Thus:

. . . We have already held in cases subsequent to Millares that the next-in-rank-rule is not absolute; it only applies in case of promotions . . . . And even in promotions, it can be disregarded for sound reasons made known to the next-in-rank. The appointing authority, under the Civil Service Law, is allowed to fill vacancies by promotion, transfer of present employees, reinstatement, reemployment, and appointment of outsiders who have appropriate civil service eligibility, not necessarily in that order. . . . There is no legal fiat that a vacancy must be filled only by promotion; the appointing authority is given wide discretion to fill a vacancy from among the several alternatives provided for by law.

In a recent case, 11 we noted further "that even if the vacancy here had been filled by promotion rather than by lateral transfer, the concept of "next-in-rank" does not import any mandatory or peremptory requirement that the person next in rank must be appointed to the vacancy. What Section 19(3) of P.D. No. 807, the Civil Service Law, provides is that if a vacancy is filled by a promotion, the person holding the position next in rank thereto "shall be considered for promotion.""

The rationale advanced for the limitation imposed on the next-in-rank rule is because the rule neither grants a vested right to the holder nor imposes a ministerial duty on the appointing authority to promote such person to the next higher position. Hence, to apply the next-in-rank rule peremptorily would impose a rigid formula on the appointing power contrary to the policy of the law that among those qualified and eligible, the appointing authority is granted discretion and prerogative of choice of the one he deems fit for appointment. 12

Time and again we have held on to the principle that the determination of who among several candidates for a vacant position has the best qualifications is vested in the sound discretion of the department head or appointing authority and not in the Civil Service Commission. Every particular job in an office calls for both formal and informal qualifications. Formal qualifications such as age, number of academic units in a certain course, seminars attended, and so forth, may be valuable but so are such intangibles as resourcefulness, team spirit, courtesy, initiative, loyalty, ambition, prospects for the future, and best interests of the service. Given the demands of a certain job; who can do it best should be left to the head of the office concerned provided the legal requirements for the office are satisfied. The Civil Service Commission cannot substitute its judgment for that of the head of office in this regard. 13

Elucidating further, we held in Abila vs. Civil Service Commission, et al., supra, that "(t)he head of the office is the person on the spot. He occupies the ideal vantage point from which to identify and designate the individual who can best fill the post and discharge its functions in the government agency he heads. The choice of an appointee from among those who possess 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, the person most familiar with the organizational structure and environmental circumstances within which the appointee must function."

We deem it necessary, under the circumstances herein obtaining, to declare that Section 4 of CSC Resolution No. 83-343 has been superseded by Section 2 of Rule 3 of CSC Resolution No. 89-799 which reads:

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Sec. 2. Positions in the Second Level. - When a vacancy occurs in the second level of the career service as herein defined the employees in the department who occupy the next lower positions in the occupational group under which the vacant position is classified, and in other functionally related occupational group, who are competent and qualified and with appropriate civil service eligibility shall be considered for appointment to the vacancy.

In the aforestated case of Abila, we made a categorical pronouncement that "(w)hen, in the exercise of its rule-making power, it promulgated Section 4 of its earlier Resolution No. 83-343, the Commission clearly exceeded the scope of its statutory authority since the Civil Service Law itself, in Section 19(3) of P.D. No. 807, had simply provided that persons next in rank who are qualified "shall be considered for promotion." The current regulation found in Section 2 of Rule III of the Commission's Resolution No. 89-779 is, fortunately, more consistent with the Commission's enabling statute."

Parenthetically, anent the observation of respondent commission and private respondent that Section 19 (6) of Presidential Decree No. 807 has been repealed by Section 8 of Presidential Decree No. 1409, suffice it to say that it is the power of review by the President, not the next-in-rank rule, which has been repealed by the latter decree.

FOR ALL THE FOREGOING CONSIDERATIONS, no abuse of discretion being imputable to public respondents in this case, the petition at bar is hereby DISMISSED.

SO ORDERED.

Narvasa, C.J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Davide, Jr., Romero, Nocon, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 101646 February 13, 1992

DR. MARIQUITA J. MANTALA, petitioner, vs.HON. IGNACIO L. SALVADOR, Judge, Regional Trial Court of Quezon City, and DR. JULIA P. REGINO,respondents.

Araceli Baviera for petitioner.

Benjamin M. Dacanay for private respondents.

NARVASA, C.J.:

At issue in this certiorari proceeding is (a) the validity of the assumption of jurisdiction by the Regional Trial Court over the matter of who is entitled, under the law and rules governing the civil service, to a contested position in the Department of Health, as well as (b) the correctness of said Court's decision on the question.

It appears that sometime in July, 1988, Dr. Mariquita J. Mantala, a private medical practitioner, was given by the Secretary of Health a temporary appointment to the then vacant position of Division Chief, Medical Division III, Monitoring and Evaluation Division of the TB Control Service, Office of Public Health, of the Department of Health.

That temporary appointment was shortly made subject to a formal protest filed by Dr. Julia P. Regino with the Committee on Evaluation and Protest of the Department of Health. Dr. Regino claimed that it was she to whom the appointment should have been extended since the post of Medical Officer III then held by her was next-in-rank to the office in question, and moreover she had been in the service for thirty-five years. However, the Committee on Evaluation and Protest ruled adversely to her and upheld the Health Secretary's appointment of Dr. Mantala as Division Chief.

Dr. Regino appealed to the Merit Systems Board of the Civil Service Commission. On December 14, 1989, the Board rendered a verdict adversely to Dr. Mantala and in Dr. Regino's favor. This decision the Department of Health appealed to the Civil Service Commission.

Some three weeks later, or more precisely on January 8, 1990, Secretary Bengzon made Dr. Mantala's appointment as Division Chief permanent. He also filed, under date of January 23, 1989, a motion for reconsideration of the aforementioned decision of the Merit Systems Board which was, however, denied, on February 12, 1990.

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Secretary Bengzon thereupon took the case up to the Civil Service Commission. In its Resolution dated June 14, 1990 (No. 90-553), the Commission dismissed the appeal and affirmed the decision of the Merit Systems Board in Dr. Regino's favor.

On a motion for reconsideration, however, the Commission, by its Resolution No. 90-1012 dated November 14, 1990, set aside the resolution of dismissal and upheld Dr. Mantala's appointment. It declared "that insofar as overall rating of the qualification, attitude and performance (was concerned), Dr. Mantala outscored Dr. Regino," and that the appointing authority is not limited to promotion in filling up vacancies but may opt to fill them by the appointment of persons with civil service eligibility appropriate to the position. Dr. Regino filed a motion for reconsideration stressing her status as "a qualified next-in-rank" officer. This was denied, the Commission declaring that it would "not delve into who is more qualified or who possesses more impressive qualifications" in deference to the discretion lodged by law in the appointing authority.

No appeal was taken from said Resolution No. 90-1012. It consequently became final and executory.

In the meantime, or more precisely on March 12, 1990, Dr. Regino instituted an action of quo warranto andmandamus in the Regional Trial Court at Quezon City against Dr. Mantala, Secretary Bengzon and other officials of the Department of Health, claiming that having an established right to the position of Division Chief in question, she should be installed therein (Civil Case No. Q-90-5486). This resulted in a judgment dated August 30, 1991 which —

1) annulled and set aside Dr. Mantala's appointment as Chief of Medical Division III in the Tuberculosis Control Service, Office for Public Health Services, Department of Health;

2) directed the Secretary of Health to withdraw Dr. Mantala's appointment and "issue in its place one for . . . Dr. Julia P. Regino and, without delay, to forward the latter's promotional appointment to the Civil Service Commission for approval pursuant to law;" and

3) declared Dr. Mantala "not entitled to said office and ousting her therefrom . . .

Hence this petition for review on certiorari in which it is prayed that the Regional Trial Court's decision be reversed.

The petition has merit and will be granted. The decision of August 30, 1991 is fatally flawed. It was rendered without jurisdiction, and it runs afoul of established doctrine.

Disciplinary cases, and cases involving "personnel actions" affecting employees in the civil service — including "appointment through certification, promotion, transfer, reinstatement, reemployment, detail, reassignment, demotion and separation," and, of course, employment status and qualification standards — are within the exclusive jurisdiction of the Civil Service Commission. The Constitution declares the Commission to be "the central personnel agency of the Government," 1 having power and authority to administer the civil service; 2 to promulgate its own rules concerning pleadings and practice before it or before any of its offices; 3 and to render decision in "any case or matter brought before it within sixty days from the date of its submission for decision or resolution," which decision, or order or ruling "may be brought to the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof." 4

On October 9, 1989, pursuant to the constitutional authority on it conferred, the Civil Service Commission, in its Resolution No. 89-779, approved, adopted and promulgated its "Rules on Administrative Disciplinary Cases and Rules on Protest Cases." Part B of said Rules, entitled "B. Rules on Protest Cases," inter alia sets out with particularity the Commission's jurisdiction broadly set forth in the Constitution, to wit:

Sec. 3. Final Appellate Jurisdiction. — The Civil Service Commission shall exercise final and exclusive appellate jurisdiction over all cases decided by the Merit Systems Protection Board and the Civil Service Regional Offices involving contested appointments or promotions.

and prescribes the procedure (Rule IV) governing protest cases. Said protest cases are described as follows: 5

(a) An appointment made in favor of another next-in-rank employee who is not qualified;

(b) An appointment made in favor of one who is not next-in-rank;

(c) An appointment made 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 protest is not satisfied with the written special reason or reasons given by the appointing authority for such appointment.

These protest cases are decided in the first instance by the head of Department or agency, subject to appeal to the Merit Systems Protection Board, whose decisions are in turn subject to appeal to the Civil Service Commission. The latter's decision may, in turn, be brought to the Supreme Court.

It was thus error, because beyond its competence, for the respondent Trial Court to take cognizance of the quo warranto and mandamus action instituted by Dr. Regino which was in essence a protest against the appointment of Dr. Mantala. Moreover, this protest, as already stated, had earlier been submitted by Regino herself to the civil service adjudicatory system laid down for the purpose in accordance with the Constitution, the law, and the Commission's rules. Dr. Regino appealed to the Merit Systems Protection Board from the decision of the Secretary of Health rejecting her protest and upholding the appointment of Dr. Mantala. She ventilated her position in the appellate proceedings instituted by Dr. Mantala in the Civil Service Commission, in connection with the latter's attempt to

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overthrow the adverse judgment of the Board. When the Commission, in its Resolution of November 14, 1990, eventually sustained Dr. Mantala's appeal, Dr. Regino filed a motion for reconsideration. It was only after the Resolution of November 14, 1990, in Dr. Mantala's favor, became final and executory by reason of Dr. Regino's failure to take an appeal therefrom — and evidently to remedy this fatal procedural lapse — that the latter thought of filing her quo warranto and mandamus action in the Regional Trial Court. Such a stratagem cannot be allowed to succeed.

Even on the merits, Dr. Regino's cause fails. For one thing, the Commission's conclusion — "that insofar as overall rating of the qualification, attitude and performance (was concerned), Dr. Mantala outscored Dr. Regino" — is basically a factual one and may not be reviewed on certiorari; and its legal opinion — that the appointing authority is not limited to promotion in filling up vacancies but may opt to fill them by the appointment of persons with civil service eligibility appropriate to the position — is entirely in accord with law. For another, the now firmly established doctrine is that the discretion exercised by the appointing power in extending an appointment to a given position to one of two or more employees possessing the requisite minimum qualifications for the position, will not generally be interfered with and must be sustained, and the Civil Service Commission has no authority to revoke the said appointment simply because it believes that another employee is better qualified, for that would constitute an encroachment on the discretion vested sole in the appointing authority. 6

WHEREFORE, the decision of the Regional Trial Court of August 30, 1991, is hereby ANNULLED AND SET ASIDE, and Resolution No. 90-1012 dated November 14, 1990 of the Civil Service Commission upholding Dr. Mantala's appointment to the contested position, which has long since become final and executory, is hereby declared to be determinative and conclusive of the controversy at bar and, if not yet carried out, must now be forthwith executed. Costs against private respondent.

SO ORDERED.

Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

.

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